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Cooper, Laura K
From: Hakowski, Denise <[email protected]>Sent: Wednesday, September 30, 2015 4:01 PMTo: Cooper, Laura KCc: Rivera, Nina; Fabiano, Claudia; Fleisig, EricaSubject: Recommedations for West Virginia's 2017 Triennial Review of Water Quality Standards
Thank you for the opportunity to provide recommended new or revised provisions for West Virginia Department of Environmental Protection (WVDEP) consideration during the upcoming triennial review of West Virginia’s water quality standards regulation in accordance with Clean Water Act (CWA) Section 303(c). The Environmental Protection Agency (EPA), Region 3, has a number of recommended criteria that which either do not currently appear in West Virginia regulation, or that are different from current EPA recommendations. These criteria include: Ammonia
West Virginia’s water quality standards are currently based on EPA’s 1999 Ammonia criteria document. EPA
revised our recommended Ammonia freshwater criteria for the protection of aquatic life in 2013, and EPA is recommending that West Virginia review its Ammonia criteria for revision during the triennial review. In updating the 1999 ammonia criteria, EPA conducted an extensive literature review that incorporates new toxicity data from 69 studies, including new data on freshwater mussels and gill‐bearing snails, which are both sensitive to ammonia toxicity. In particular, the freshwater mussels are more sensitive to ammonia than the organisms included in the 1999 criteria dataset. You can find more information on the 2013 ammonia water quality criteria on EPA’s website, at http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/ammonia/. Copper BLM
The Copper Biotic Ligand Model (BLM), a metal bioavailability model that uses receiving water body
characteristics to develop site‐specific water quality criteria, utilizes the best available science and serves as the basis for EPA’s national recommended criteria. EPA is recommending that WV consider adopting the Copper BLM for use in the state. In its “Training Materials on Copper BLM: Implementation,” EPA recommends two approaches for adopting the BLM, either incremental or statewide implementation. An incremental approach is where the hardness based criterion remains in regulation and applies to all waters except for those where site‐specific criteria are derived using the BLM. If WV were to choose this approach, you could add a paragraph to the water quality standards regulation noting that site‐specific criteria for copper may be developed on a case‐by‐case basis using the BLM, and adopted per WVDEP’s process for adopting site‐specific criteria into its water quality standards regulation.
The other option would be to adopt the BLM as the statewide standard to replace the current hardness‐based
criteria, and then either develop numeric results up front when adopting the revision, or when developing permits or conducting assessments.
You can find more information on the Copper BLM, including the “Training Materials on Copper BLM:
Implemenation” on EPA’s website at: http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/copper/ Other Aquatic Life Criteria
In addition to Ammonia and the Copper BLM, EPA has published a number of new criteria documents for the
protection of aquatic life over the past decade. West Virginia should consider the following criteria to determine if they
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should be adopted into the water quality standards to protect aquatic species in the state: Carbaryl, Acrolein, Diazinon, Nonylphenol and Tributyltin. You can refer to EPA’s National Recommended Water Quality Criteria website at http://water.epa.gov/scitech/swguidance/standards/criteria/current for more information.
All of the above recommendations, including Ammonia and the Copper BLM, are aquatic life criteria. Under the
Endangered Species Act, when reviewing revisions to state water quality standards, EPA must consult with the U.S. Fish and Wildlife Service to determine the impact on federally listed threatened and endangered species in West Virginia. As WVDEP reviews its aquatic life criteria as part of the triennial review process, you should consider the level of protection the national water quality criteria recommendations offer threatened and endangered species in West Virginia. Bacteria
West Virginia’s water quality standards currently include fecal coliform as an indicator of bacterial
contamination in surface waters. EPA has recommended the use of e. coli or enterococci as in indicator in fresh water since 1986, and in 2012 confirmed those indicators. EPA recommends that WVDEP review the 2012 document, Recreational Water Quality Criteria (820‐F‐12‐058, December 2012), and consider revising its bacteria criteria to be consistent with EPA recommendations. You can find more information on the 2012 recreational water quality criteria on EPA’s website, at http://water.epa.gov/scitech/swguidance/standards/criteria/health/recreation/. Human Health Criteria
EPA noted in your August 25, 2015, Water Quality Standards Quarterly Meeting presentation that you are
planning to consider EPA’s 2015 Updated Human Health criteria recommendations. EPA supports this plan as these updated recommendations for 94 chemical pollutants reflect the latest scientific information and EPA policies, including updated body weight, drinking water consumption rate, fish consumption rate, bioaccumulation factors, health toxicity values, and relative source contributions. Additional information on the updated human health criteria can be found at EPA’s website at http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm. Category A Designated Use EPA also noted in WVDEP’s August 25, 2015 presentation that WVDEP plans to review the application of its Category A (Water Supply, Public) designated use. As you review the Category A designated use in the State, EPA would remind you that as it is currently applied to all surface waters of the state, you would need to consider the provisions of federal regulations at 40 CFR 131.10. Existing uses may not be removed, downstream protection must be considered, and WVDEP would need to consider the use and value of the surface waters where the Category A designated use was being removed.
Please note that the comments and recommendations contained in this letter are strictly for the consideration
of the West Virginia Department of Environmental Protection (WVDEP) and do not constitute approval or disapproval decisions under CWA Section 303(c). Neither are these comments a determination by the EPA Administrator under CWA Section 303(c)(4)(B) that revised or new standards are necessary to meet the requirements of the Act.
Thank you are again for the opportunity to provide these comments. If you have any questions regarding these
comments or recommendations, please do not hesitate to contact me at (215)814‐5726. Sincerely, Denise Hakowski Environmental Scientist EPA Region 3 3WP30 1650 Arch Street
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Philadelphia, PA 19103
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American Electric Power Comments on Recommended Changes to WV DEP Water Quality
Standards Regulations: 2017 Triennial Review
American Electric Power (AEP) appreciates the opportunity to provide these comments on our
recommended changes to the West Virginia Water Quality Standards Regulations (the “WQS”) for the
upcoming 2017 triennial review. We appreciate the agency’s willingness to accept comments at this
early stage.
Category A Public Water Supply Use
Currently, WV DEP applies the Category A use designation to all waterbodies in the state, except in
those waterbodies that have undergone a use attainability analysis indicating that the Category A use is
not appropriate. The Category A use is intended to protect the consumption of water by the public
after conventional treatment. AEP, like many others in the regulated community, believes that the
pervasive application of this use category to all waterbodies is not appropriate. By requiring that
drinking water human health criteria not be exceeded at wastewater discharges from industrial and
publicy‐owned treatment facilities, the agency misleads the public by suggesting that potable‐quality
drinking water is available in an effluent mixing zone or in downstream ambient water. NPDES permits
issued by DEP are not, and never were, intended to require conventional treatment for the purpose of
achieving drinking water standards. We believe that the agency needs to carefully re‐evaluate the
human health protection basis and cost implications of numerous facilities, some at considerable
distances from drinking water intakes, being required to not exceed human health drinking water
standards.
AEP recommends that the agency revise this policy and clarify that the Category A use designation apply
only within a reasonable distance (e.g., 500 yards) from a known drinking water intake. The agency has
already promulgated a similar application to the human health manganese criterion, whereby the
criterion is not applicable at a distance five miles upstream of a public or private drinking water intake.
Design Flow Rate – Human Health Carcinogen Criteria
Currently, for calculating wasteload allocations pertaining to point source discharges, the agency uses a
default stream design flow of 7Q10 for carcinogenic and non‐carcinogen human health criteria. AEP
recommends that this value be changed to the harmonic mean flow. The return frequency of a stream’s
7Q10 flow – statistically ‐ is once per 10 years. Thus, for every consecutive 10‐year period, a stream’s
flow is greater than the 7Q10 value 90% of the time. During an assumed longevity of 70 years (a value
consistent with US EPA risk inputs), the number of days with a flow rate corresponding to 7Q10 or less is
2,520. But, during the same 70‐year period, the number of days with flow rate greater than 7Q10 is
23,030. With such a low frequency of occurrence of 7Q10 flows over a lifetime (and recognizing that
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laboratory studies used to derive a reference dose value are based on continual chemical exposures),
use of the 7Q10 flow is essentially a “zero exposure, zero risk” policy that is overtly over‐conservative.
The harmonic mean flow (a value higher than the 7Q10) will result in more reasonable frequencies of
flows at or about the harmonic mean flow value, but still be environmentally protective.
Water Quality Criteria
We have the following comments on specific numeric criteria listed in Appendix E, Table 1 of 47CSR2:
Human health mercury criteria‐ mercury
There are three human health mercury criteria elements in the WQS: 1) a fish tissue methylmercury
criterion of 0.5 mg/kg (wet weight); 2) a total mercury water criterion of 0.14 µg/L for Category A public
water supply; and 3) a total mercury water criterion of 0.15 µg/L for Category C contact recreation.
Currently, the WQS do not include specific procedures as to how the fish tissue criterion is to be
evaluated for compliance. We recommend that the agency develop guidance on how the criterion is to
be implemented from both a monitoring and assessment perspective, and (where applicable) how
attainment of the criterion is to be evaluated for NPDES permitting purposes. AEP recommends that
DEP follow the general procedures provided in the US EPA guidance document, “Guidance for
Implementing the January 2001 Methylmercury Water Quality Criterion”, EPA 823‐R‐10‐001, 2010.
Aquatic life mercury criterion
The existing chronic aquatic life mercury criterion is expressed as a water concentration of
methylmercury (0.012 µg/L). AEP requests that DEP provide a summary of what data the criterion is
based on. We are aware of no acceptable chronic toxicity test that demonstrates an adverse effect to
aquatic life at this low concentration. A more fundamental concern is why the agency requires water
quality‐based effluent limits (WQBELs) ‐ that are expressed as total mercury – to protect for a criterion
that is based on the most toxic, bioavailable form of mercury (methylmercury). Some regulated entities
would likely be willing to conduct a mercury translator study if the WQS provided a mechanism to do
this. We request that DEP provide a “fix” for this inconsistency by adopting a new footnote which
corresponds to Section 8.18 and 8.18.2 of Appendix E, Table 1:
The ratio of methylmercury to total mercury may be determined
on a site‐specific basis, and this ratio shall be used to adjust a total
mercury effluent limitation to maintain the ambient methylmercury
criterion.
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At locations where the percentage of total mercury as methylmercury is very low (a common occurrence
at ambient and effluent discharge locations), a permittee should not be required to attain a criterion ‐
that is based on methylmercury ‐ on the assumption that all mercury in the process wastestream is in
the methylmecury form.
Human health criteria‐ thallium
The WQS contain drinking water and drinking water/fish consumption human health criteria for thallium
(1.7 µg/L and 6.3 µg/L, respectively). AEP notes that US EPA no longer provides a scientifically
defensible reference dose value for inorganic thallium salts. The most recent assessment of potential
human health effects caused by exposure to thallium (US EPA. 2009. Toxicological review of thallium
and compounds. EPA/635/R‐08/001F) states that:
The available toxicity database for thallium contains studies that
are generally of poor quality. (p. 79)
In addition to US EPA’s assessment, the Agency for Toxic Substance Disease Registry (ATSDR) has not
issued a minimum risk level (an effects‐based human health benchmark similar to the reference dose)
for thallium due to insufficient toxicity data. Because of the lack of a defensible reference dose value for
thallium, we recommend that the drinking water and the drinking water/fish consumption human
health criteria for thallium be removed from the WQS.
John M. and Petra B. Wood
P.O. Box 4103
Morgantown, WV 26504
(304) 285-6159
17 September 2015
To: West Virginia Department of Environmental Protection
Laura Cooper < [email protected] >
Please accept the following public comments regarding solicitation for suggestions for criteria changes
and additions as part of the upcoming triennial review for West Virginia’s Water Quality Standards Rule
[47 C.S.R. § 2], which will be proposed by DEP in 2016 for consideration in the 2017 legislative
session.
We believe that West Virginia’s Water Quality Standards Rule does not appropriately implement
antidegradation [47 C.S.R. § 2-4] to protect the narrative criteria in receiving streams―including
headwater streams―below surface mines and coal refuse areas. Implementing antidegradation correctly
requires setting protective thresholds for sulfates, conductivity, and TDS, which are parameters of
concern for implementation of the narrative criteria and for maintaining the “Aquatic Life” designated
use of the majority of West Virginia’s streams. There is a solid and growing scientific consensus
regarding appropriate thresholds for these parameters,1 and even WVDEP has set thresholds in its
Narrative Water Quality Permitting Guidance. For discharges into Tier 1 streams, discharge limitations
should be set equal to these thresholds for sulfates, conductivity, and TDS. Based on peer-reviewed
analyses of West Virginia’s extensive water quality database, effluent limits should be no greater than
300-500 μS/cm for conductivity, 500 mg/l for TDS, and 50 mg/l for sulfates to provide Tier 1
protection. For discharges into Tier 2 streams, West Virginia’s Water Quality Standards Rule would
need to set water quality-based effluent limits for sulfates, conductivity, and TDS such that degradation
is less than 10% of remaining assimilative capacity. The assimilative capacity should be determined
regionally from the base loads of conductivity, TDS, and sulfates in reference streams that have had
little to no surface mining impact. In addition, West Virginia’s Water Quality Standards Rule should be
revised to incorporate an acceptable biological threshold based on use of Genus Level Index of Most
Probable Stream Status (GLIMPSS) scores. For water-quality based outlets, conductivity, TDS, and
sulfates discharge limitations should be reevaluated―based on the findings of semiannual benthic
surveys―and readjusted whenever GLIMPSS scores decline by more than 5% below baseline scores.
1 Please refer to the literature review as well as the discharge monitoring report (DMR) water quality data for Scotts Run
and Guston Run that we included in our 30 April 2015 public comment letter to DEP Regional Office, 47 School Street, Suite
301, Philippi, WW 26416-1150, pertaining to reissuance of WVNPDES/1017535.
Sincerely,
John M. and Petra B. Wood
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 1 of 37
John M. and Petra B. Wood
P.O. Box 4103
Morgantown, WV 26504
(304) 285-6159
30 April 2015
DEP Regional Office
47 School Street, Suite 301
Philippi, WW 26416-1150
Dear Sir or Madam,
Please accept the following public comments pertaining to the reissuance of an Article
11/West Virginia National Pollutant Discharge Elimination permit WV1017535 for PATRIOT
MINING COMPANY INC, 2708 CRANBERRY SQ, MORGANTOWN, WV 26508, in order to
maintain, monitor, and operate the New Hill Surface Mine in the Waynesburg and Waynesburg
A seams of coal. We recommend that WVDEP take into consideration the information provided
in this comment letter and impose numerical effluent limits on conductivity, total dissolved
solids (TDS), and sulfates that will be sufficiently stringent to protect the aquatic life designated
use of the Guston Run and Scotts Run stream segments that are or that would become adversely
affected by the New Hill Surface Mine. The key points which WVDEP needs to address are
summarized in the following bullets:
The proposed mine’s impacts on the general public, particularly the low-income
families who live in the Cassville area and stand nothing to gain from the degradation
of their use and enjoyment of their streams, should be made plain and clear. WVDEP
is accountable to the general public, and in particular, these families.
WVDEP’s apparent intent to continue to ignore the preponderance of evidence in the
scientific literature linking biological impairment to the elevated concentrations of
sulfates, conductivity, and TDS that are released into streams by surface mining is
arbitrary and capricious.
What (if any) new methods will WVDEP use for "evaluating the holistic health of the
aquatic ecosystem",1 and why should new sources of ionic pollution that will be
greater than the assimilative capacity of Scotts Run be approved from outfalls 026,
027 and 028 by this reissuance, particularly now, if that evaluation will not be
completed on Scotts Run and Guston Run until around 2022?
While the WVDEP Office of Special Reclamation (OSR) works to remediate the
additional potential sources of biological impairment that may be due to elevated
concentrations of iron in Scotts Run, why does WVDEP concurrently fail to address
the elevated concentrations of sulfates, conductivity, and TDS that are being released
into streams by the New Hill Complex?
1 2012 West Virginia Senate Bill 562
(http://www.legis.state.wv.us/Bill_Text_HTML/2012_SESSIONS/RS/bills/SB562%20SUB1%20enr.pdf)
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 2 of 37
The permit does not appropriately implement antidegradation to protect the narrative
criteria in the receiving streams. Implementing antidegradation correctly would first
require setting protective thresholds for sulfates, conductivity, and TDS, which are
parameters of concern for implementation of the narrative criteria. As detailed in this
letter, there is a solid and growing scientific consensus regarding appropriate
thresholds for these parameters, and even WVDEP has set thresholds in its Narrative
Water Quality Permitting Guidance. These thresholds would then be used to classify
receiving streams as Tier 1 or Tier 2. For discharges into Tier 1 streams, discharge
limitations would be set equal to these thresholds for sulfates, conductivity, and TDS.
For discharges into Tier 2 streams, WVDEP would need to set water quality-based
effluent limits for sulfates, conductivity, and TDS such that degradation is less than
10% of remaining assimilative capacity.
The abundant evidence—including longstanding EPA policy of independent
application along with the WVSCI scores cited in this letter—demonstrate that
reissuance of this permit in its present draft form will not afford Tier 2 protection to
the Guston Run stream segment below outlets 014 and 021; nor will the reissuance
afford Tier 2 protection to the stream segment in Scotts Run below outlet 001
(proposed outlet 028); and it will most assuredly not afford Tier 2 protection to the
unimpaired stream segments in Scotts Run below outlets 006, 026 and 027 and the
headwater stream segment adjacent to WV Route 43/8 if mining of the S-2009-09
WVSMCRA permit were to proceed.
There is no conclusive evidence that the biologically impaired stream segments in
Scotts Run and Guston Run will recover from the adverse effects of an, “…operation
[that] is past the point where measures could be taken to reducing the operation’s
impact on the aquatic ecosystem”. If the WV Narrative Water Quality Permitting
Guidance does not apply to activities which are ʺsubstantially completeʺ where the
operation is past the point where measures could be taken to reducing the operation’s
impact on the aquatic ecosystem, then how can WVDEP expect that any new surface
mining activities in the Scotts Run Watershed are going to prevent biological
impairment from happening in the unimpaired stream segments of Scotts Run?
Last but not least, we expect WVDEP to specifically address all of the bold-faced
statements and/or questions in our comment letter.
1. Based upon the biological monitoring data that have been included in the proposed
NPDES permit reissuance, the stream segments of Scotts Run that are associated with
outlet 001 (proposed outlet 028) and the Guston Run stream segment that is associated
with outlets 014 and 021 are biologically impaired. These data refute WVDEP’s claim
that Tier 1 protection is afforded for all designated uses. Based on the same biological
monitoring data, the upstream segment of Scotts Run is not biologically impaired.
Therefore, WVDEP’s claim that a full Tier 2 anti-degradation review has been
conducted is false because outlets 006 and proposed outlets 026 and 027 will release
ionic pollution into the upstream segment of Scotts Run, and biological impairment will
ensue.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 3 of 37
The public notice for this NPDES permit reissuance states that “An anti-degradation review
has been conducted. Tier 1 protection is afforded because effluent limitations ensure compliance
with water quality criteria for all designated uses.” To say that Tier 1 affords “protection” is
arbitrary and capricious in this instance because there is no protection being afforded these
streams in the form of effluent limitations for sulfates, conductivity, and TDS to ensure
compliance with narrative water quality criteria for aquatic life. “A water segment shall be
afforded Tier 1 protection where the level of water quality is not sufficient to support recreation
and wildlife and the propagation and maintenance of fish and other aquatic life, or where the
water quality meets but does not exceed levels necessary to support recreation and wildlife and
the propagation and maintenance of fish and other aquatic life.” [60 C.S.R. § 5-5.4.2] The
designated use of these stream segments is B1― the “propagation and maintenance of fish and
other aquatic life in streams or stream segments that contain populations composed of all warm
water aquatic life.”2 West Virginia Stream Condition Index (WVSCI) scores show that the
aquatic life in the Guston Run (Table 1) and downstream Scotts Run stream segments is
impaired. WVDEP says that “Antidegradation refers to federal regulations designed to maintain
and protect high quality waters and existing water quality in other waters from unnecessary
pollution. This policy will ensure that West Virginia's waters are protected from activities which
have the potential to lower water quality.” 2. This reissuance does nothing to protect the existing
water quality from unnecessary pollution from sulfates, conductivity, and TDS.
The public notice also states that “Where applicable, a full Tier 2 anti-degradation review
has been conducted.” WVDEP says that one of the four basic elements of water quality
standards is, “An antidegradation policy to maintain and protect existing uses and high quality
waters”1. The fact that WVSCI scores show that the aquatic life in the upstream segment of
Scotts Run is not biologically impaired and that the physical habitat (RBP) scores are “optimal” 3
indicate that Tier 2 protection should be afforded to the upstream segment of Scotts Run (i.e.,
adjacent to WV Routes 43 and 43/8) based upon a full Tier 2 antidegradation review. However,
it appears that WVDEP does not think that a Tier 2 anti-degradation review was necessary for
this permit reissuance because the draft permit and/or rationale page do not afford Tier 2
protection to any of the stream segments in Scotts Run or Guston Run. “A water segment shall
be considered a Tier 2 high quality water where the level of water quality exceeds levels
necessary to support recreation and wildlife and the propagation and maintenance of fish and
other aquatic life.” [60 C.S.R. § 5-5.5.1] This proposed permit reissuance absolutely does NOT
afford Tier 2 protection to the upstream segment of Scotts Run. Both Scotts Run and Guston
Run meet the EPA’s policy of independent application based solely on the WVSCI scores: “To
the extent the commenter asserts that its toxicity sampling rebuts any determination of
impairment based upon biological assessment, the commenter is incorrect. Biological
assessment, chemical samples, and toxicity testing each have both overlapping and unique
attributes and sensitivities. Chemical sampling and toxicity testing are indirect estimators of
2 http://www.dep.wv.gov/WWE/Programs/wqs/Pages/default.aspx
3 Biological Monitoring Report: New Hill Complex - West Virginia NPDES Permit WV1017535: BAS Locations: DSR,
DUTSR, UUSR, USR027, and USR. April 15, 2014. Prepared by: AllStar Ecology, LLC for Patriot Mining Company,
Inc. 78pp.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 4 of 37
biological conditions that assess the suitability of waters to support a healthy community, but
they do not directly assess the community itself. Biological sampling directly evaluates the
overall structure and/or functional characteristics of the aquatic community. For that reason, it
has been EPA's longstanding policy (called the policy of independent application) that each
method can provide valid and independently sufficient evidence of aquatic life use impairment,
irrespective of the results of the other two approaches. In other words, if any one of the three
assessment methods (biological sampling, chemistry sampling, or toxicity testing) identifies
impairment, the water is considered impaired. See EPA, Final Policy on the Use of Biological
Assessments and Criteria in the Water Quality Program (May 1991) (available at
http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/biocriteria/upload/2002_
10_24_npdes_pubs_owm0296.pdf).”4 Rather than acknowledge the scientific consensus on
biological impairment, WVDEP chose to misrepresent the interpretation of a single sentence
from a 1991 EPA guidance document as its justification for dismissing impaired WVSCI and/or
GLIMPSS scores.5 Subsequently, the draft rationale page for this reissuance WVDEP requires
the permittee only to achieve Whole Effluent Toxicity (WET) limits to “...minimize impact to
the aquatic ecosystem…” and only “… for any NON‐CONSTRUCTED OUTLETS which are
4http://www.epa.gov/reg3wapd/pdf/pdf_tmdl/WV303d/Final/Enclosure%202%20EPA%202012%20WV%20303(d)
%20action%20response%20to%20comments508.pdf (see “EPA Response 6” to Arch Coal’s comments on 2012
West Virginia Integrated Water Quality Monitoring and Assessment Report: the PDF also can be accessed from
http://www.epa.gov/reg3wapd/tmdl/303list.html).
5 We contend that this quote from the WVDEP Justification document
(http://www.dep.wv.gov/pio/Documents/Narrative/Narrative%20Standards%20Guidance%20Justification.pdf)
arbitrarily and capriciously distorts the interpretation of the 1991 EPA guidance document:
“The Pond-Passmore Study, upon which EPA relied in the development of its guidance on this subject,
concludes that West Virginia’s narrative standard is violated by surface coal mining operations based on
the Study’s application of two biologic assessment tools, the West Virginia Stream Condition Index
(“WVSCI”) and the draft Genus Level Index of Most Probable Stream Status (“GLIMPSS”), to samples of
benthic macroinvertibrate life taken from these streams. This conclusion is flawed for two reasons. First,
West Virginia does not use the draft GLIMPSS in its assessment of the biologic health of State streams.
Second, these tools are just that – tools. They are not stand-alone determinants of compliance with the
narrative standard. Any application of these assessment tools in determining compliance with the
narrative standard must faithfully apply the language of the standard itself, which prohibits significant
adverse impacts on the chemical, physical, hydrologic or biological components of the aquatic ecosystem.
Thus, DEP’s Guidance follows long-standing EPA guidance, which indicates that biosurveys cannot fully
characterize an entire aquatic community and its many attributes, and accordingly suggests that “State
standards should contain biological criteria that consider various components (e.g. algae, invertebrates,
fish) and attributes (measures of structure and/or function) of the larger aquatic community.” ”
(Underline added)
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 5 of 37
NONPRECIPITATION INDUCED.”6 However, by using only a single tool—the results of a
laboratory WET test on a single species (Ceriodaphia dubia) for a “holistic approach to
ecosystem assessment”5—isn’t WVDEP contradicting its own purpose and justification for
protection of the State’s narrative water quality standards? Based on the EPA’s policy of
independent application, the impaired WVSCI scores for Scotts Run and Guston Run are
evidence enough that negative impacts to the aquatic ecosystem will ensue in the upstream
segment of Scotts Run (i.e., adjacent to WV Routes 43 and 43/8) if mining activities are started
there. Furthermore, the draft rationale page needs to include not just WET triggers, but also
biological and chemical triggers because, “…if any one of the three assessment methods
(biological sampling, chemistry sampling, or toxicity testing) identifies impairment, the water is
considered impaired.”4 Indeed, the WVDEP Justification document,5 states that, “DEP’s most
recent stressor identification protocols, as used in the EPA-approved TMDL process, include the
guidelines shown in FIGURE 2 below for evaluating water chemistry to determine if ionic
strength is a significant stressor”. In that Figure 2, WVDEP defines conductivity and sulfates
concentrations greater than 1533 µS/cm and 417 mg/l, respectively, as “definite stressor”. The
average conductivity and sulfates effluent concentrations at outfall 001 of WV1017535 are
2,065 µS/cm and 1,185 mg/l, respectively—see Tables 6 and 8, attached to this letter.
WVDEP therefore must acknowledge the conductivity and sulfates effluents from outfall
001 as a “definite stressor” which, by definition, clearly exceed protective thresholds and
must impose Tier 1 discharge limitations at least equal to these thresholds for conductivity
and sulfates. And therefore, the downstream impairment in Scotts Run should trigger a
Tier 2 anti-degradation review—and protection—for the upstream segments that are not
impaired. To provide that Tier 2 protection, WVDEP must set water quality-based
effluent limits for sulfates, conductivity, and TDS such that degradation is less than 10% of
remaining assimilative capacity. It is clear from the Wasteload Allocation & Assimilative
Capacity Worksheet of the draft rationale page for this permit reissuance that WVDEP has not
done this.
With respect to Senate Bill 562, which ordered WVDEP to write new rules for "evaluating
the holistic health of the aquatic ecosystem", a genus-level (Pond et al. 2013) rather than a
family-level (WVSCI) bio-monitoring approach should be used to evaluate the impairment level
of the macroinvertebrates in Scotts Run and Guston Run. With regard to fish, if any species are
present in Scotts Run and Guston Run, diversity generally decreases with increasing stream
conductivity, particularly if conductivity exceeds 1000, with “highly tolerant” species such as
creek chub and blacknose dase comprising the majority of the species present.7 In support of this
statement, Hitt and Chambers (2014) found significant degradation of fish assemblages in
mining-impacted streams.
6
http://www.dep.wv.gov/dmr/Narrativeguidanceinformation/Documents/NPD%20and%20NPM%20NWQS%20Instr
uctions%20Revised%2003-07-2013.pdf
7 Personal communication: Stuart Welsh, West Virginia Cooperative Fish & Wildlife Research Unit.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 6 of 37
2. This proposed Article 11 NPDES permit reissuance does not protect the Aquatic Life
(B1) designated use criterion in Scotts Run or in Guston Run. The source(s) of CNA-
Biological status have not been identified, therefore the changes proposed as part of this
reissuance must be denied at least until the source(s) have been identified and
provisions are added to the permit that will provide actual (Tier 2) protection.
On March 25, 2013, the U.S. Environmental Protection Agency (EPA) partially disapproved
the draft 2012 Section 303(d) list prepared by WVDEP, in that “WVDEP failed to evaluate
existing and readily available information related to West Virginia's applicable narrative water
quality criteria (W.Va. CSR § 47-2-3.2(e) & (i)) as applied to the aquatic life uses.” 8 Therefore,
the EPA added over two hundred water quality limited segments (WQLSs), including Scotts Run
and Guston Run, to the list of biologically impaired (“CNA-Biological”) water bodies.
Furthermore, the EPA previously concluded that, “Based on the science, as a general matter,
EPA expects that in-stream conductivity levels maintained at or below 300 μS/cm will meet water
quality standards and that in-stream conductivity levels above 500 μS/cm are likely to be
associated with adverse impacts that may rise to the level of exceedances of narrative state water
quality standards. If water quality modeling suggests that in-stream levels will exceed 500
μS/cm, EPA believes that reasonable potential likely exists to cause or contribute to an excursion
above applicable water quality standards; unless, based on site-specific data, the state has an
alternative interpretation of their water quality standards that is supported by relevant science.
Similarly, if water quality monitoring suggests that in-stream levels will exceed 300 μS/cm but
will be below 500 μS/cm, EPA should work with the permitting authority to ensure that the
permit includes conditions that protect against conductivity levels exceeding 500 μS/cm.” 9 The
EPA Science Advisory Board, which conducted a comprehensive review of two of the Agency’s
draft reports, The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the
Central Appalachian Coalfields and A Field-based Aquatic Life Benchmark for Conductivity in
Central Appalachian Streams, stated that “The extensive data set from West Virginia used to
derive the benchmark provides broad spatial coverage and includes a large number of streams
with and without mountaintop mining and valley fills. The similarity of the benchmark developed
using an independent data set from Kentucky was an important validation of the approach and
the quality of the data.” 10
The West Virginia Antidegradation Implementation Procedures defines “parameter of
concern” as “…any parameter for which numeric water quality criteria have been adopted in
8 < http://www.epa.gov/reg3wapd/pdf/pdf_tmdl/WV303d/2012WV303dList-Encl1-3-25-13.pdf > available at < http://www.epa.gov/reg3wapd/tmdl/303list.html >
9 U,S. EPA MEMORANDUM. “Detailed Guidance: Improving EPA Review of Appalachian Surface Coal Mining
Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive
Order.” <
http://water.epa.gov/lawsregs/guidance/wetlands/upload/2010_04_01_wetlands_guidance_appalachian_mtntop
_mining_summary.pdf >
10 < http://yosemite.epa.gov/sab/sabproduct.nsf/0/EEDF20B88AD4C6388525785E007331F3/$File/EPA-SAB-11-006-unsigned.pdf >
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 7 of 37
47CSR2 and any other parameter for which numeric criteria are not established but where the
discharge of such parameter has a reasonable potential to either cause or contribute to a
violation of the narrative criteria outlined under 47CSR2, section 3.” [60 C.S.R. § 5-2.7] With
respect to the Tier 1 protection for biological impairment, which the EPA has proposed for many
additional WQLS, including Guston Run and Scotts Run, it specifies that “Where existing uses of
the water body are impaired, there shall be no lowering of the water quality with respect to the
parameters of concern that are causing the impairment. The agency shall consider nomination
of such water body for the 303(d) list of water quality-impaired streams.” [60 C.S.R. § 5-4.7]
With respect to Tier 2 protection: “Degradation for Tier 2 shall be deemed significant if the
activity results in a reduction in the water segment’s available assimilative capacity (the
difference between the baseline water quality and the water quality criteria) of ten percent or
more at the appropriate critical flow condition(s) for parameters of concern. Critical flow
conditions for non-precipitation induced discharges are the 7Q10 flow of the receiving stream,
plus either of the following: maximum permitted flow or maximum flow specified in the
application, for industrial activities, or the average design flow, for wastewater treatment
activities. Degradation will also be deemed significant if the proposed activity, together with all
other activities allowed after the baseline water quality is established, results in a reduction in
the water segment’s available assimilative capacity of 20% or more at the appropriate critical
flow conditions for the parameters of concern… Significant degradation will be determined on a
parameter-by-parameter basis for each parameter of concern that might be affected by the
regulated activity.” [60 C.S.R. §§ 5-5.6c and 5-5.6d]
We believe that WVDEP arbitrarily and capriciously does not recognize sulfates,
conductivity, and TDS as parameters of concern because it does not want to have to deal with the
anti-degradation implications. Recent legal decisions indicate that the ionic pollution that is
being caused by surface mining in less populated areas of southern West Virginia is not as
clouded by the confounding circumstances that may be contributing to the causative sources of
biological impairment in Guston Run and in Scotts Run. Nevertheless, we believe that the
WVSCI data (Table 1) and the eDMR effluent data (Tables 3—8) do show that ionic pollution is
at least a contributing factor to that impairment. There have been several recent southern West
Virginia federal district court decisions that would appear to confirm this.11 In a decision12
pertaining to several Alpha Natural Resources surface mines, Judge Chambers concluded that
mines operated by Alpha Natural Resources in Boone and Nicholas counties have, “…caused or
materially contributed to a significant adverse impact… [that] …unquestionably biologically
impaired…” the receiving streams, leaving both the diversity and abundance of aquatic life
“…profoundly reduced.” Chambers went on to conclude that, “Losing diversity in aquatic life,
as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the
11 See, e.g., Ohio Valley Envtl. Coal. v. Elk Run Coal Co., 24 F.Supp. 3d 532, 542 (S.D.W.Va. 2014) (stating that “The
Court can find no basis for substituting the WVDEP's general judgment that there is no causative effect between
high conductivity and low WVSCI scores for the extensive scientific evidence in this case which reveals precisely
this causative effect”); Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, No. CIV.A. 2:13-5006, 2015 WL 362643
(S.D.W. Va. Jan. 27, 2015).
12 http://www.wvsd.uscourts.gov/sites/default/files/opinions/312-cv-00785_1.pdf
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 8 of 37
canary in a coal mine. These West Virginia streams… …even like those used by Defendants‘
expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to
West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex
network of flowing streams provide critical attributes — functions, in ecological science — that
support the downstream water quality relied upon by West Virginians for drinking water, fishing
and recreation, and important economic uses. Protecting these uses is the overriding purpose of
West Virginia‘s water quality standards and the goal of the state‘s permit requirements.”
The discharge monitoring report (DMR) data provided to WVDEP by MEPCO’s NPDES
permit (WV1007751) to WVDEP for instream Guston Run monitoring points upstream versus
downstream of the site indicate that mining activities are cumulatively contributing discharges of
sulfates, conductivity, and TDS that cause increases of instream concentrations well in excess of
20% between the upstream and downstream monitoring stations. These DMR data were
collected by MEPCO for NPDES permit WV1007751 between February 2011 and December
2014 at two sampling sites (Table 2). The average percentage change between upstream (UGR-
1) and downstream (DGR-1) monitoring stations is on the order of 34% for TDS (Table 4), and
46% for sulfates (Table 5). While the average value of 579 mg/l for TDS at UGR-1 was above
the suggested EPA benchmark, the average value at DGR-1 was 34% greater at 775 mg/l. The
Scotts Run data indicate an even greater difference between upstream (USR) and downstream
(DSR) monitoring stations. The average percentage change between upstream (USR) and
downstream (DSR) monitoring stations is on the order of 60% for conductivity (Table 6), 66%
for TDS (Table 7), and 70% for sulfates (Table 8). While the average value of 562 μS/cm for
conductivity at USR was above the suggested EPA benchmark, the average value at DSR was
60% greater at 900 μS/cm. Likewise for TDS, which was below 369 mg/l on average at USR, but
was, on average 611 mg/l at DSR (Table 7), which is well above the 500 mg/l threshold. Why
does WVDEP think that the New Hill West mining operation authorized under the
proposed permit—if it’s ever started—would do anything to decrease ionic pollutants? WVDEP should work with the EPA to ensure that the proposed permit includes conditions that
will provide Tier 2 protection against conductivity and TDS levels exceeding 500 μS/cm and 500
mg/l, respectively.
The WV 2011 annual State of the Environment report13 states that West Virginia used
“Sulfates >50mg/l” as one of its specific, “targeted water quality” indicators of “sources of
impairment” with which to illustrate the condition of West Virginia’s rivers and streams. The
report says that “The agency uses the [Water Management] framework as a tool, not only to
assess waters, but also to implement water quality improvement plans on each of the state’s 32
watersheds.” The average value of 336 mg/l for sulfates at UGR-1 (Table 5) is clearly already
above the “targeted water quality” indicator, due to the fact that the water is effluent from Patriot
Mining Company’s recent surface mining activities at WVSCMRA permit S-1002-00. However,
the average value at DSR was cumulatively 46% greater at 490 mg/l. While the average value of
203 mg/l for sulfates at USR was above the “targeted water quality” indicator, the average value
at DSR (Table 8) was 70% greater at 346 mg/l. Therefore, WVDEP should work with the EPA
to ensure that the proposed permit includes conditions that will provide Tier 2 protection against
sulfate levels exceeding 50 mg/l at both its Guston Run and Scotts Run outfalls.
13 http://www.dep.wv.gov/pio/Pages/State%20of%20the%20Environment%20report.aspx
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 9 of 37
The public notice for the WVDEP Office of Special Reclamation (OSR) WV1029169 permit
application states that “An anti-degradation review has been conducted. Tier 1 protection is
afforded because effluent limitations ensure compliance with water quality criteria for all
designated uses. Tier 2 protection is also afforded because the agency has made a determination
that the discharge(s) will not cause significant degradation to the receiving stream(s) for any
parameters of concern.” However, the impaired WVSCI score provided with this (WV1017535)
reissuance application for BAS locations “DUTSR” and “DSR” (Table 1) prove otherwise. The
WV1029169 permit application lacks any credibility to state that Tier 2 protection is afforded the
stream segment of Scotts Run that is downstream of the area impacted by the AS&K bond
forfeiture site (WVSCMRA permit S-1011-89). The chemical data and WVSCI scores both
indicate that the segment of Scotts Run downstream of the outlet only meets the first part of the
either/or Tier 1 definition.
Total iron concentrations increased 16% between USR and DSR (Table 3). The two sources
of acid mine drainage (AMD), the Brock Mine west of Cassville and the AMD seep at bond
forfeiture site S-1011-89 (AS&K) are in need of remediation by the OSR. To date, the
excavation work that has been conducted at the AS&K bond forfeiture site―prior to issuance of
the permit14―appears to have done nothing to remediate the AMD.
Note that the iron concentrations emanating from the unnamed tributary of Scotts Run at
UTSR-1 (Table 2) have dropped significantly since May 2013 to below the 1.5 mg/l waste load
allocation for iron (Table 3). What type and form of treatment is being used―and by
whom―to so rapidly counteract the AMD? We assume that the mine operator installed a
chemical treatment system at about that time. Whatever the treatment system is, it seems to be
significantly lowering the iron concentrations―at least for the time being. Why can’t OSR
employ whatever remediation method that the mine operator is using upstream of UTSR-1
to similarly reduce AMD emanating from the Brock Mine west of Cassville and at the
AS&K bond forfeiture site?
Since Guston Run and Scotts Run are now included in the Section 303(d) list of biologically
impaired streams in West Virginia, we believe this requires WVDEP to determine the causes and
sources of the elevated TDS and sulfates at UGR-1 and DGR-1 in Guston Run as well as the
causes and sources of the cumulative increase between these two stream monitoring stations.
Based on DMR data, Outfalls 014 and 021 (Tables 3—4) at Patriot Mining Company’s surface
coal mining New Hill West Complex NPDES permit (WV1017535) may be large contributors.
According to Patriot’s recent design-flow diagrams, these two outfalls drain into Guston Run
14 The WV1029169 permit has still not been issued. The milestones indicate that it is languishing on the DMR
Director’s desk (see
https://apps.dep.wv.gov/WebApp/_dep/search/Applications/activities.cfm?application_id=64039&dep_office_id=
HPU&ap_type_code=NPD&DESCRIPTION=New%20Application%2C%20NPDES&responsible_party_name=WVDEP%
20OFFICE%20OF%20SPECIAL%20RECLAMATION&APPLICATION_SEQUENCE_ID=1&APPLICATION_PERMIT_ID=WV1
029169)
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 10 of 37
between MEPCO’s upstream (UGR-1) and downstream (DGR-1) monitoring stations.15
However, the UTM coordinates (Table 2) suggest that Outfall 021 drains into an unnamed
tributary of Scotts Run rather than into Guston Run. So if the UTM coordinates for Outfall 021
are correct and the design-flow diagrams are incorrect, then Outfall 021 cannot be contributing to
the cumulative increases in TDS and sulfates observed at DGR-1. Furthermore—according to
the publicly available eDMR data—for the majority of the time Outfall 014 does not flow, so it
would not persistently contribute to the increase in TDS and sulfates observed in 32 out of the 34
DMR samples (Tables 3—4) from UGR-1 to DGR-1. It is disturbing to us that the UTM
coordinates suggest that Outfall 021 drains into an unnamed tributary of Scotts Run rather than
into Guston Run because it adds uncertainty to our interpretation of the causes of the cumulative
increases in TDS and sulfates observed at DGR-1. Moreover, according to the design-flow
diagram for WV1017535 Modification #9, Patriot Mining Company’s DGR-2 stream monitoring
station is located downstream of Outfall 021 and upstream of Outfall 014. According to the
design-flow diagram that was submitted with this permit reissuance, DGR-2 is downstream of
both of these outfalls. However, the UTM coordinates suggest that DGR-2 is upstream of both
outfalls. Even more disconcerting are the changes in flow rates between Patriot’s DGR-2 stream
monitoring station and MEPCO’s DGR-1 stream monitoring station. All of the data sources
indicate that MEPCO’s DGR-1 is downstream of Patriot’s DGR-2 and that the two stations are
no more than a quarter of a mile apart. Yet both the minimum and maximum flow rates between
Patriot’s DGR-2 stream monitoring station and MEPCO’s DGR-1 stream monitoring station
decrease significantly—66% and 65%, respectively (Tables 9—10). This significant decrease in
flow rates, in conjunction with the significant increases in TDS and sulfates, exacerbates the
other conditions that may be contributing to biological impairment. And one thing is clearly
certain: that imposing numerical effluent limits on the sources of the cumulative increases in
sulfates, conductivity, and TDS—be they from MEPCO’s permit, or Patriot’s past or present
permits, or both—would go a long way towards ameliorating the cumulative impacts that are
attributable to the surface coal mining activities in this drainage regardless of what WVDEP’s
narrative water quality permitting guidance presently requires for “substantially complete”
operations. Please clarify where DGR-2 is actually located. Given the issues we have
identified concerning conductivity, sulfates, and flow, the justification stated in the
rationale page that, “…to minimize redundancy…” is an illegitimate reason to allow the
mining operator to delete the DGR-2 stream monitoring station.
If the final result of “substantially complete” surface mining operations is that our public
waterways are going to be biologically impaired then something is very wrong with WVDEP
guidelines. WVDEP still has to enforce the antidegradation laws in the Clean Water Act
regardless of what the Division of Mining and Reclamation’s policies or justifications are 16
regarding enforcement of the narrative water quality standards. The Narrative Water Quality
Standards section of the rationale page for MEPCO’s NPDES permit reissuance application
(WV1007751) states that, “Facilities with primarily precipitation induced discharges are
unlikely to cause or contribute to violations of the West Virginia’s narrative water quality
15 Please note that the left-to-right order of the columns in Tables 3-8 is based upon design-flow diagram locations.
16 http://www.dep.wv.gov/dmr/Narrativeguidanceinformation/Pages/default.aspx
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 11 of 37
standards. Precipitation induced discharges (storm water) flow only in response to precipitation
and do not have residence time with un-weathered rock and therefore would not be expected to
have elevated mineralization/ions in the discharge. Primarily precipitation induced outlets only
flow at times when the receiving streams have the greatest assimilative capacity (dilution).
These outlets are designed not to discharge during critical low flow conditions of the receiving
stream, and therefore do not have a reasonable potential to adversely impact the aquatic
ecosystem.” The Narrative Water Quality Standards section of the rationale page for this
NPDES permit reissuance application (WV1017535) states pretty much the same thing, but also
says that, “The guidance goes on to state that it does not apply to activities which are
ʺsubstantially completeʺ where the operation is past the point where measures could be taken to
reducing the operation’s impact on the aquatic ecosystem… …The entire drainage area for
outlet 001 (272.30 acres) has been reclaimed, revegetated and has vegetative growth of that
required for Phase 2 requirements… …The drainage area designated for Outlet 021 was final
graded, mulched and seeded in September 2012. The vegetation above Outlet 021 meets those
requirements of Phase 2 vegetation and displays mature vegetation. Since the drainage area
contributing to these outlets are past the point where additional control measures could be
implemented to reduce the impact on the aquatic ecosystem, the operations contributing to these
outlets are considered substantially complete. Therefore WVDEP’s ʺPermitting Guidance for
Surface Mine Operations to Protect West Virginia’s Narrative Water Quality Standards, 47CSR2
Sections 3.2.e and 3.2.iʺ does not apply to outlets 001, 014, 015, 016, and 021.”
Moreover, the WVDEP’s determination that outlets 001, 014, 015, 016 and 021 are
“substantially complete,” ignores control measures that could be taken to address water quality
problems from those outfalls. Under the WVDEP’s narrative guidance, an outfall is
“substantially complete” when, “the operation is past the point where measures that could be
taken under either an AEPP or an AMP could be effective in reducing the operation’s impact on
the aquatic ecosystem.” Here, a Toxicity Reduction Evaluation (“TRE”) or Toxicity
Identification Evaluation (“TIE”) could still be used to identify causes of toxicity and potential
corrective action. 17 Under the EPA’s Technical Support Document for Toxics Control (“TSD”)
corrective procedures using a TRE or a TIE can include many options to reduce or eliminate the
toxicity of effluent—including chemical treatment. These outfalls cannot be said to be
substantially complete when no TIE or TRE has been performed.
Note the high concentrations of sulfates, conductivity, and TDS that the “substantially
complete” outfall 001 is still generating fifteen years after construction (Tables 6―8). Look
at the increase in the concentrations of TDS and sulfates from UGR-1 to DGR-1 (Tables
4―5), which are undoubtedly attributable to the effluents from the “substantially
complete” outfalls 014 and 021. These are all water-quality based (non-precipitation-
induced) outfalls. The drainage areas all received variances to convert the designated land
use from forest to hayland pasture. Neither the original (2010) nor the revised (2013)
narrative water quality guidance and justification documents contain any supporting, peer-
17 < http://www.dep.wv.gov/pio/Documents/2011-05-
11%20%20Narrative%20Standards%20Permitting%20Guidance%20(Rev%20%202).pdf > (see footnote on page 1,
and Adaptive Management Plan (AMP) on page 6)
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 12 of 37
reviewed literature to back up the reasons why the fact that all or part of a permitted
operation is “substantially complete” terminates a mine operator’s liability for causing or
remediating water pollution or its duty to remediate that pollution. These documents were
clearly written by the pro-coal bureaucracy pervading WVDEP and the State legislature,
not by WVDEP scientists.
Even though it is considered “substantially complete”, Outfall 001 is still generating
significantly elevated concentrations relative to the base loads of sulfates, conductivity, and TDS
at the proposed biological assessment stations (BAS-USR and BAS-USR027). 18 Outfall 001
(and 028) are instream outlets: the “reconstructed stream” will continue to flow after the mining
permit S-2009-09 is completed and reclaimed—if that mining is ever started—and it will
continue to release significantly elevated concentrations of sulfates, conductivity, and TDS
relative to the present base load. Changes in the minimum and maximum flow rates between
Patriot’s DGR-2 stream monitoring station and MEPCO’s DGR-1 stream monitoring station
decrease significantly—66% and 65%, respectively—in about a quarter of a mile of stream
length. This significant decrease in flow rates, in conjunction with the significant increases in
TDS and sulfates, is clearly indicative of a reasonable potential to adversely impact the aquatic
ecosystem regardless of whether or not MEPCO’s and Patriot’s permitted outfalls between
MEPCO’s UGR-1 and DGR-1 stream monitoring stations are precipitation-induced discharges or
water-quality based discharges. The source(s) of CNA-Biological status have not yet been
identified by WVDEP, therefore the changes proposed as part of this reissuance must be denied
at least until the source(s) have been identified and provisions are added to the permit that will
provide actual (Tier 2) protection. Some combination of environmental and/or mining-induced
causes may be cumulatively contributing to the impairment.
In a comparison of TDS with acid-base accounting parameters that are commonly used to
quantify the effluent characteristics of mine spoils Odenheimer et al. (2013) found that, “…MPA
[maximum potential acidity] (sulfur content) had the strongest relationship to TDS release…”
and that “…Samples with MPA values of… 3.0+ g kg-1 produced TDS values >500 mg l-1.” We
suggest that their findings might be employed as an indicator that WVDEP engineers should
evaluate during the surface-mine and NPDES application process as triggering a reasonable
potential to cause cumulative biological impairment of receiving streams. Section I-11 of Patriot
Mining Company’s application for WVSCMRA permit S-2009-09 provided MPA results at three
overburden test sites—bore holes NH 10-08, NH 11-08, and NH 13-08—of 11.53, 11.93, and
10.29 “tons per thousand”, respectively. Given that tons per thousand is equivalent to grams per
kilogram, these reported MPA values are all significantly greater than the 3.0 value that
Odenheimer et al. (2013) predicted would produce TDS values >500 mg/l. Antidegredation
policy and the reopener clause on these NPDES permits provide WVDEP with mechanisms for
imposing a numerical effluent limit on TDS, which would go a long way towards reducing the
elevated values in Scotts Run and Guston Run.
18 See Table 8 of Biological Monitoring Report: New Hill Complex - West Virginia NPDES Permit WV1017535: BAS
Locations: DSR, DUTSR, UUSR, USR027, and USR. April 15, 2014. Prepared by: AllStar Ecology, LLC for Patriot
Mining Company, Inc. 78pp. Base loads at USR and USR027 were: 478 and 454 μS/cm for conductivity, 322 and
316 mg/l for TDS, and 60 mg/l for sulfates.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 13 of 37
3. There is already abundant evidence published in peer-reviewed literature
demonstrating that sulfates, conductivity, and TDS are causative stressors, and there is
evidence that those parameters are elevated in Scotts Run and Guston Run and
therefore are responsible for the biological impairment documented in those streams.
Accordingly, WVDEP must establish limits for those pollutants, even if it intends to
undertake additional efforts to identify other potential causative stressors.
According to the 2014 Integrated Water Quality Monitoring and Assessment Report19 (i.e.,
the draft 303(d)) list, the status of Scotts Run and Guston Run is “CNA-Biological” and that
“The causative stressor(s) of impairment and the contributing sources of pollution will be
identified during the TMDL development process.” The septic systems of the houses along
Scotts Run and Guston Run are all connected to Scotts Run Public Service District sewage lines,
so residential development is an unlikely source of fecal contamination. There is iron
impairment in Scotts Run due to legacy coal mining activities upstream of the USR and DSR
stream monitoring stations, whereas the data for the Guston Run stream monitoring stations are
all below the 1.5 mg/l iron impairment (chronic) threshold (Tables 2―3). If WVDEP were to
assume that iron is a causative stressor of biological impairment in Scotts Run, then why
do the WVSCI scores in Guston Run indicate biological impairment when there are no iron
concentrations greater than the chronic threshold? Could the elevated concentrations of
sulfates, conductivity, and TDS by themselves be a causative stressor? This seems likely at
least in Guston Run. WVDEP has already acknowledged the “ionic stress” in Scotts Run and
Guston Run as being “Significant stressors of biologically impacted streams in the Monongahela
River Watershed”. 20 Couldn’t the elevated concentrations of conductivity, TDS, sulfates,
and iron―in combination―be contributing to cumulative causative stress in Scotts Run?
WVDEP initially implied in the June, 2014 draft of the Section 303(d) List 21 that the sources of
biological impairment in Scotts Run and Guston Run would be determined as soon as WVDEP
worked out the new, holistic biological integrity assessment methodology: “The alternative
“TBD” entries signify the DEP’s intent to address the impairments as soon as practicable after
accomplishing SB 562 requirements.” WVDEP has already had three years since the passage of
SB 562 to work this out. However, in the revised 2014 Section 303(d) List17 that WVDEP sent
to EPA last week, the projected TMDL year has now been delayed until “(No Later Than)” 2022.
How much longer will WVDEP continue to procrastinate? Rather than maintain the
status quo (Tier 1), we believe that placing numerical permit limits on sulfates,
conductivity, and TDS―in addition to the numerical permit limits already in place for
iron―would improve the likelihood of affording actual (Tier 2) protection to the
19 <
http://www.dep.wv.gov/WWE/watershed/IR/Documents/IR_2014_Documents/DraftIRtoEPA/DraftReportSupplem
ents2014.pdf >
20
http://www.dep.wv.gov/WWE/watershed/TMDL/grpd/Documents/D2%20Mon%202014/EPA%20Approved%20Do
cs/USEPA%20Approved_D2_TMDL_Report_4_14_14.pdf (see Table 4-2)
21 The initial draft is no longer available on the WVDEP Website.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 14 of 37
biologically impaired segments of Scotts Run and Guston Run that are downstream of this
NPDES permit.
Peer-reviewed scientific studies conducted in the Appalachian Region have documented
statistically significant associations between high concentrations of conductivity, sulfates, and
TDS below surface coal mines and degradation of aquatic stream life (Palmer et al. 2010,
Bernhardt and Palmer 2011, U.S. EPA 2011a, Lindberg et al. 2011, Daniels et al. 2014). Freund
and Petty (2007) noted that streams began exhibiting ecological impairment—based on WVSCI
scores—with dissolved aluminum, iron, manganese, and nickel concentrations as low as 0.16,
0.22, 0.34, and 0.020 mg/L, respectively; and at sulfate concentrations as low as 50 mg/L and at
specific conductance levels of 144 µS/cm. They also noted that “All indications from this study
and previous studies (Maret and MacCoy 2002; Clements 2004; Merovich and Petty, 2007)
suggest that the combination of many dilute stressors can interact to produce biological
impairment even in streams where no single chemical constituent exceeds water quality criteria.
This is an important water quality management issue that must be addressed if we are to ever be
successful restoring and protecting biological life uses of streams in mined watersheds”.
Declines in stream macroinvertebrate biodiversity have been linked to the amount of mining
activity in a watershed (Pond et al. 2008, Merriam et al. 2011, Cormier et al. 2013a) 22 and to
increased levels of sulfate (Palmer et al. 2010, Bernhardt et al. 2012) and specific conductance
(Pond et al. 2008, Mincy 2012) below coal mines, with habitat metrics contributing less of a
significant effect than conductivity, sulfate, and TDS (Pond et al. 2014). In addition, peer-
reviewed studies have been published which corroborate the adverse effects of elevated
conductivity on fish and amphibian diversity and abundance (Wood and Williams 2013, Hitt and
Chambers 2014, Muncy et al. 2014). To our knowledge, there still are no peer-reviewed studies
in the scientific literature nor any “relevant science” that contradict these findings. Roark et al.
(2013) disputed Cormier and Suter’s (2013) conductivity benchmark methodology, but Roark’s
unweighted cumulative distribution function estimate (345 μS/cm) was nevertheless below the
suggested EPA benchmark of 500 μS/cm.
Percentages of valley fill, mining, and urban development were found by Cormier et al.
(2013a) to be strong predictors of rising conductivity levels in streams, but that “the type of ions
associated with urban land uses differs (i.e., CL- dominated), from that of coal mining land use
(i.e., HCO3- and SO4
2- dominated)”. A mixture dominated by the ions Ca+, Mg+, HCO3-, and
SO4-, as measured by conductivity, is a common cause of extirpation of aquatic
macroinvertebrates in Appalachia where surface coal mining is prevalent (Cormier et al. 2013b).
U.S. EPA (2011b) found that, “…% Urban/residential is not well correlated [r=0.13] and in [the
WVDEP WABbase in Ecoregion 69D] region is confounded somewhat by mining land uses”.
Merriam et al (2013) found that, “A greater proportion of sites fell below the WVSCI threshold
[<68.01] at all levels of additional surface mining across SLWs [segment level watersheds] with
pre-existing land use. For example, ~20% of SLWs with additional surface mining between 30
and 40% remained unimpaired when surface mining was the only stressor. In contrast, 100% of
SLWs with pre-existing residential development were predicted to fall below the WVSCI
22 We have determined that approximately 2172 acres of 9420 acres, or 23% of the Scotts Run watershed, has
already been surface mined and/or permitted for surface mining operations.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 15 of 37
threshold with additional surface mining ≥20% (Fig. 7B).” Merriam et al. (2013) also states
that, “When residential development is the only stressor present, increased dissolved constituents
(especially Na and Cl) and decreased habitat quality and biological conditions can be linked
directly to increased density of built structures upstream.” It should be noted that this does
not appear to be a finding of the Merriam et al. study. And even if this a general statement
based upon a review of the literature, it should also be noted that Merriam does not cite
any references and in particular does not cite any references pertaining to high-gradient,
Appalachian streams. Even so, the dissolved ionic constituents that they implicate are
indicative of wintertime road salting, which have a short-term, seasonal effect on conductivity
levels rather than the long-term, year-round effect that Ca+, Mg+, HCO3-, and SO4
- ions that are
released by surface-mine spoils have on aquatic macroinvertebrates in Appalachian streams.
Pond et al. (2014) said that, “…we found that specific conductance accounted for nearly all of
the variation in Ca (r2 = 0.99), Mg (r2 = 0.99), SO4 (r2 = 0.98), and K (r2 = 0.97), and to a
lesser extent HCO3 (r2 = 0.77) and Na (r2 = 0.52).” Pond et al. (2014) also noted that,
“Overall, biological variation was strongly correlated with water chemistry and less by reach-
scale habitat and landscape conditions. Since ion concentrations explained the greatest amount
of biological impacts and were the most altered (compared to reference), this suggests that
recovery is potentially hindered by ions, even in forested reaches long after reclamation.”
Regardless of whether or not residential development contributes to the adverse effects that
are caused by surface mining the Merriam et al. analysis was flawed because they did not
analyze WVSCI scores or conductivity levels at any SLWs with residential development
only (i.e., without surface mining). Nevertheless, a quite important takeaway from their results
that they did not discuss was that state agencies like WVDEP should deny all new surface
mining permits in SLWs with residential development where surface mining has already
occurred in >20% of the watershed. And since we have determined that approximately 2,172
acres of 9,420 acres, or 23% of the Scotts Run watershed, has already been surface mined
and/or permitted for surface mining operations, why is WVDEP still issuing and renewing
more surface mining permits in the Scotts Run watershed?
Likewise, Daniels et al. (2014) who, “…summarizes column leaching studies of spoils (n >
50) and refuse and TDS effects on local water quality and biotic response.” concluded that,
“…research to date has been consistent in documenting depressed benthic macroinvertebrate
communities in mining influenced streams, and statistical associations of such effects with
measured levels of SC/TDS. Hence, available research strongly suggests that elevated
concentrations of major ions in mine discharge waters, measured as SC [specific conductance]
and TDS, are causing aquatic community alterations.” Evans et al. (2014) analyzed longitudinal
trends (1 to 23 years) in conductivity (SC) concentrations from 137 Virginia valley-fill (VF) sites
and concluded that, “… the model projected time required to approach natural conditions (by
declining to <500 μS/cm) was 19.6 years after VF construction, indicating long-lasting but not
permanent aquatic impacts due to elevated (>500 μS/cm) SC.” We predict that WVDEP will̅—
or already has—latched onto these results as proof and justification of new and continuous
surface coal mining that will protect the narrative water quality standards because the negative
impacts will not be permanent. However, the Evans et al. conclusion is flawed for two reasons.
First, their model does not take into consideration the cumulative effects of multiple surface
mines in the same watershed, let alone the cumulative effects of surface mining and residential
development found by Merriam et al. (2013). Second, and even more importantly, the Evans et
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 16 of 37
al. (2014) model of the projected time required to approach natural conditions was based on only
16 of the 137 VF sites in their study. The authors cherry picked only the 16 samples, “…with
significant negative quadratic relationships…” and “…at least five years of data after the
estimated quadratic maximum…” on which to base their conclusions, when in fact they excluded
75 of the 137 sites where conductivity either increased, did not change over time, or lacked post-
mining data points, and that, “…by the end of the time frame of this study, only 7 of the 137 VFs
studied had exhibited declines to mean values <500 μS/cm.” We highly recommend that
WVDEP’s decision makers read the entire manuscript before accepting the findings in Evans et
al. (2014) as presented in their abstract. Likewise, Petty et al. (2013) stated that, “Conductivity
tended to decline with mine age, but this trend was not significant (Fig. 6).” The conductivity
values (n=5) referred to in their Figure 6 declined from about 3,300 μS/cm in the “constructed
perennial stream channels” (i.e., drainage ditches) they studied at the youngest mine to about
2,200 μS/cm in the ditch at the 20-year-old mine, which further underscores our contention and
that of the peer-reviewed literature that elevated conductivity causes biological impairment. The
average WVSCI score and percentage of EPT in the five ditches that Petty et al. (2013) studied
was 48 and 5% respectively—which indicates that the ditches were biologically impaired—while
the average WVSCI score and percentage of EPT in the reference streams they compared the
ditches to was 68 and 48%, respectively. Moreover, the authors observed “…significant declines
in stream dwelling salamander populations…” and that, “…there was a significant shift in
community types that can be that can be linked to conversion from forested lotic habitat…” in
the reference streams “…to grassland lentic habitat” in the constructed perennial stream
channels and that, “…the shift in local amphibian and macroinvertebrate assemblages from
lotic, sensitive taxa to lentic, generalist taxa may become problematic as the cumulative effects
from mine to mine are considered at a regional scale…”. The low-gradient channels they studied
were presumably engineered to prevent surface water from running off the perimeter of the
surface mine, hence they tended to be perennially filled with water—and with cattails, willows,
pond-dwelling insects, and mature frogs and toads.
The WVDEP continues to ignore the fact that conductivity, sulfates, and TDS discharged
from coal mines are pollutants even though the scientific consensus is that these water quality
parameters are strong indicators of biological impairment. If the WVDEP can set numerical
limits on pH and total suspended solids, which are clearly indicators of pollution rather than
“toxic pollutants”, then the WVDEP can and should set numerical limits on conductivity,
sulfates, and TDS on this permit reissuance. A water quality benchmark already exists for
conductivity (Cormier and Suter 2013, Griffith 2014), which should be a trigger on this permit.
“The derivation of this aquatic life benchmark using conductivity illustrates the practical use of
the field-based method for developing water-quality benchmarks for pollutants that are not
amenable to laboratory methods [11]. The method is credible because it is adapted from
methods that have been successfully used for nearly 30 years to develop water-quality criteria
using laboratory data and because the field-based method has withstood extensive public and
peer review. The derived benchmark is credible because it has been validated and has withstood
tests of the models, causation, and potential confounding.” (Cormier et al. 2013c)
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 17 of 37
4. Reissuing this permit in its present draft form will eventually ruin most of the last-
remaining, unimpaired stream segment in the Scotts Run watershed by allowing the
mine operator to overload it with ionic pollutants.
It is a fact—see the 2014 benthic study provided by the permittee as part of this permit
reissuance—that the Scotts Run stream segment that parallels WV Routes 43 (Cassville-Mt.
Morris Road) and 43/8 (Fleming Road) is not biologically impaired. There has been little in the
way of surface mining along this stretch with the exception of a few, localized punch mines in
the Waynesburg coal seam. This situation will change dramatically if and when surface mining
of the S-2009-09 WVSCMRA permit occurs. The modifications in this NPDES reissuance—
along with those in WV1017535, Modification #9 in 2009—approve three NPDES outfalls (006,
026 and 027) along the stream segment adjacent to Route 43. In addition, all of the surface and
groundwater drainage from the mine would be diverted away from the existing headwater
streams along Routes 43 and 43/8. All of that water would be diverted towards the outfalls,
effectively choking off the existing headwater streams along Route 43/8 and Scotts Run along
Route 43 from at least half of their usual water budget.
The three outfalls have a designed maximum flow rate of 196 cfs. Outfall 006 and its
associated sedimentation pond was constructed during the mining of WV SCMRA permit S-
2010-01, so it has effectively choked off the headwater stream between itself and Scotts Run for
the past 15 years. Outfalls 026 and 027 have not yet been constructed. We can attest to the fact
that there is abundant surface and groundwater sheet-flow coming from the proposed S-2009-09
permit area along WV Routes 43 and 43/8 because we live here and travel these roads almost
every day, and the previously forested areas have been logged since 2010. The hydrologic
balance will be significantly altered if mining commences in this area. The headwater tributaries
that would be dredged and filled if the 404 permit is approved and mining commences would
decapitate the hydrological connections to Scotts Run, and would cease to provide any of the
functional benefits that currently contribute to biological integrity of the upstream segments of
Scotts Run. Even the draft rationale page for this reissuance attests to the fact that these so-
called “precipitation induced” outfalls may flow in response to the groundwater that “…may be
encountered…” during the mining phase, and that the permit writer has to hold these outfalls to
the NWQS guidelines. These outfalls will flow when the mine pits are overloaded with water,
which will in turn release slugs of treated AMD waters heavily laden with ionic pollutants into
the Scotts Run stream segment and result in biological impairment.
5. Other Miscellaneous Questions and/or Comments
(a.) Section 3.C., page 3 of the draft rationale page, says that, “Due to the 5.00 acres for
Amendment No. 1 of S200909, Tier 2 review will be conducted and anti-deg effluent
limits recalculated for outlets 006, 026 and 027. Revised limits listed below.” Does
this mean that revised limits were calculated as a result of a Tier 2 review on
these outlets, or has this Tier 2 review not yet been conducted and the limits will
be revised at a later date? If it is the latter, will the public be notified and
allowed to comment?
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 18 of 37
(b.) Why is selenium not listed under “Outlet 006, 026 and 027” at the bottom of
page 3 of the rationale page?
(c.) Section 3.C., page 5 of the draft rationale page, says that, “When an ash source is
determined, an ash constituent analysis can be submitted to determine whether the
parameters to be monitored can be minimized based on what is/is not present in the
proposed ash source.” Does this mean that the parameters to be monitored may
be revised at a later date? If this is true, will the public be notified and allowed
to comment?
(d.) Explain the procedures that will be used and the data that will be collected at the
“special outlets” (BAS-DSR, BAS-USR, and BAS-UUSR) to “…account for the
holistic assessment of the aquatic ecosystem while limiting assessment to potential
impacts of the permit area.” How does limiting the assessment to potential
impacts of the permit area provide the Tier 2 protection that the WV1029169
permit application asserts is already afforded to Scotts Run downstream of
OSR’s proposed AMD plant and the new sedimentation pond in the AMD seep?
(e.) As far as we can tell, the permittee did not include an Aquatic Ecosystem
Protection Plan (AEPP)—which should include controls designed to lower the
magnitude of pollutant loading associated with mining activities—with the
permit reissuance application. According to the Guidance 23, “New and expanded
discharge permit applications shall include an AEPP for agency review and
approval, and the permit writer shall use the control measures outlined therein as
part of his or her RP analysis, as outlined more fully above. The permittee shall use
the measures outlined in its AEPP as a means of maintaining the health of the aquatic
ecosystem and complying with the State’s narrative water quality standards. An
AEPP describes control measures the applicant will implement to achieve WET
limitations and minimize adverse biological impacts to the aquatic ecosystem
surrounding the permitted activity. The plan should also include controls designed to
lower the magnitude of pollutant loading associated with mining activities. If the
agency cannot conclude that the proposed measures are reasonably expected to
result in compliance, then the permit will not be issued.”
In conclusion, we believe that the reasons behind WVDEP’s intransigence to accept the
science linking ionic pollution from coal mines with biological impairment of our streams are
deeply rooted in the political/economic culture that binds the West Virginia legislative
community with the coal industry. We believe this is wrong, places economic concerns on an
unequal par with environmental concerns, and ridicules the agency’s moniker of “Environmental
Protection”. We believe that the alleged Tier 1 and 2 anti-degradation reviews of this proposed
permit reissuance fail to recognize that the elevated discharges of sulfates, conductivity, and
23 < http://www.dep.wv.gov/pio/Documents/2011-05-
11%20%20Narrative%20Standards%20Permitting%20Guidance%20(Rev%20%202).pdf >
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 19 of 37
TDS are contributing to aquatic life impairment; that WVDEP should make it a high priority to
identify the causative stressors that are responsible for and/or contributing to biological
impairment (WVSCI scores <68.01) before reissuing this permit; that this reissuance requires
numerical effluent limits for conductivity, TDS and sulfates; and that Tier 2 protection against
future sources of biological impairment must be afforded to the Scotts Run stream segment and
headwater streams adjacent to WV Routes 43 and 43/8.
Sincerely,
John M. and Petra B. Wood
Elizabeth and Stephen Lawson
1213 Gallus Road
Morgantown WV 26501
Cindy Rank, Chair
WVHC Mining Committee
4401 Eden Rd
Rock Cave, WV 26234
Cc:
Brian Trulear, Chief, NPDES Permits Branch
USEPA REGION 3
1650 Arch Street
Mail Code: 3WP41
Philadelphia, PA 19103-2029
Roger W. Calhoun, Director, Office of Surface Mining Reclamation and Enforcement
Charleston Field Office
1027 Virginia Street East
Charleston, West Virginia 25301
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 20 of 37
Mr. Greg Currey
US Army Corps of Engineers, Pittsburgh District
1000 Liberty Avenue
Pittsburgh, PA. 15222-4186
The Honorable Patrick Morrisey, Attorney General of the State of West Virginia
State Capitol Complex,
Bldg. 1, Room E-26
Charleston, WV 25305
The Honorable Loretta Lynch, Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Literature Cited
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fill operations for aquatic ecosystems of the Central Appalachians. Ann. NY Acad. Sci.
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Amos J. 2012. How Many Mountains Can We Mine? Assessing the Regional Degradation of
Central Appalachian Rivers by Surface Coal Mining. Environ. Sci. Technol. 46:8115-8122.
Cormier S.M. and Suter II G.W. 2013. A method for deriving water-quality benchmarks using
field data. Environ. Toxicol. Chem. 32(2):255-262.
Cormier S.M., Wilkes S.P. and Zheng L. 2013a. Relationship of land use and elevated ionic
strength in Appalachian watersheds. Environ. Toxicol. Chem. 32(2):296-303.
Cormier S.M., Suter II G.W., Zheng L. and Pond G.J. 2013b. Assessing causation of the
extirpation of stream macroinvertebrates by a mixture of ions. Environ. Toxicol. Chem.
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Cormier S.M., Suter II G.W., Zheng L. and Pond G.J. 2013c. Derivation of a benchmark for
freshwater ionic strength. Environ. Toxicol. Chem. 32(2):263-271.
Daniels W.L., Zipper C.E. and Orndorff. 2014. Predicting release and aquatic effects of total
dissolved solids from Appalachian USA coal mines. Int. J. Coal Sci. Technol. 1(2):152-162.
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Evans D.M., Zipper C.E., Donovan P.F. and Daniels W.L. 2014. Long-term trends of specific
conductance in waters discharged by coal-mine valley fills in central Appalachia, USA. J. Am.
Water Resour. Assoc. 1-12. (DOI: 10.1111/jawr.12198)
Freund JG and Petty JT (2007) Response of fish and macroinvertebrate bioassessment indices to
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Griffith M.B. 2014. Natural variation and current reference for specific conductivity and major
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Hitt N.P. and Chambers D.B. 2014. Temporal changes in taxonomic and functional diversity of
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Lindberg T.T., Bernhardt E.S., Bier R., Helton, A.M., Merola, R.B., Vengosh, A. and Di Giulio,
R.T. 2011. Cumulative impacts of mountaintop mining on an Appalachian watershed. Proc.
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Merriam E.R., Petty J.T., Merovich G.T., Fulton J.B., and Strager M.P. 2011. Additive effects
of mining and residential development on stream conditions in a central Appalachian watershed.
J. North Am. Benthol. Soc. 30(2):399-418.
Merriam E.R., Petty J.T., Strager M.P., Maxwell A.E. and Ziemkiewicz P.F. 2013. Scenario
analysis predicts context-dependent stream response to landuse change in a heavily mined central
Appalachian watershed. Freshwater Science 32(4):1246-1259.
Mincy, G. 2012. Effects of coal mining on freshwater mussels in the New River Basin: a test
using Corbicula as biomonitors. Geol. Soc. Am. Abstracts with Programs, 44(7):465.
Muncy B.L., Price S.J., Bonner S.J. and Barton C.D. 2014. Mountaintop removal mining
reduces stream salamander occupancy and richness in southeastern Kentucky (USA). Biol.
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Predicting release of total dissolved solids from overburden material using acid-base accounting
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Hendryx M.S., Lemly A.D., Likens G.E., Loucks O.L., Power M.E., White P.S. and Wilcock
P.R. 2010. Mountaintop mining consequences. Science 327(5692):148-149.
Petty J.T., Gingerich G., Anderson J.T. and Ziemkiewicz P.F. 2013. Ecological function of
constructed perennial stream channels on reclaimed surface coal mines. Hydrobiologia 729:39-
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Pond G.J, Bailey J.E., Lowman B.M. and Whitman M.J. 2013. Calibration and validation of a
regionally and seasonally stratified macroinvertebrate index for West Virginia wadeable streams.
Environ. Monitoring and Assessment 185(2):1515-1540.
Pond G.J., Passmore M.E., Pointon N.D., Felbinger J.K., Walker C.A., Krock K.J.G., Fulton J.B.
and Nash W.L. 2014. Long-Term Impacts on Macroinvertebrates Downstream of Reclaimed
Mountaintop Mining Valley Fills in Central Appalachia. Environ. Manage. 54(4):919-933.
Pond G.J., Passmore M.E., Borsuk F.A., Reynolds L. and Rose, C.J. 2008. Downstream effects
of mountaintop coal mining: comparing biological conditions using family- and genus-level
macroinvertebrate bioassessment tools. J. North Am. Benthol. Soc. 27(3):717-737.
Roark S.A., Wolf C.F., De Jong G.D., Gensemer R.W. and Canton S.P. 2013. Influences of
subsampling and modeling assumptions on the US Environmental Protection Agency field-based
benchmark for conductivity. Integr. Environ. Manage. 9:533-534.
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Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields. Office of Research
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EPA/600/R-09/138F. 153pp.
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Public Comments pertaining to reissuance of WVNPDES/1017535 Page 23 of 37
Table 1. West Virginia Stream Condition Index (WVSI) macroinvertebrate scores for Guston Run.
Data sources: WVDEP, Watershed Assessment Program database (1999-2009); and Biological
Monitoring Report: New Hill Complex - West Virginia NPDES Permit WV1017535: BAS
Locations: DSR, DUTSR, UUSR, USR027, and USR dated April 15, 2014. Prepared by: AllStar
Ecology, LLC for Patriot Mining Company, Inc. 78pp (2013). A WVSCI score belew 68.01 is
considered impaired.
SAMPLE DATE
Latitude Longitude Stream Mile Point
BAS Location
WVSCI Score
9/15/1999 39° 40' 30.4" -80° 02' 10.3" Guston Run 0.6 49.29
5/18/2004 39° 40' 23.2" -80° 01' 55.6" Guston Run 0.4 53.07
7/22/2009 39° 40' 23.2" -80° 01' 55.6" Guston Run 0.4 45.35
9/15/1999 39° 39' 38.5" -80° 00' 03.2" Scotts Run 0.6 31.80
7/22/2009 39° 39' 38.5" -80° 00' 03.2" Scotts Run 0.6 51.36
6/10/2003 39° 40' 28.2" -80° 04' 02.3" Scotts Run 5.4 54.23
7/22/2009 39° 40' 29.3" -80° 04' 05.9" Scotts Run 5.5 74.27
9/27/2013 39° 39' 58.9" -80° 03' 08.1" Scotts Run DSR 56.97
9/27/2013 39° 39' 59.5" -80° 03' 11.8" Scotts Run DUTSR 51.39
9/27/2013 39° 39' 57.3" -80° 03' 47.6" Scotts Run UUSR 63.86
9/27/2013 39° 40' 18.8" -80° 03' 56.5" Scotts Run USR027 80.93
9/27/2013 39° 40' 30.2" -80° 04' 08.7" Scotts Run USR 86.50
Table 2. Location of upstream (UGR-1) and downstream (DGR-1) Guston Run
WVNPDES/1007751 (MEPCO, LLC) Discharge Monitoring Report (DMR) sampling stations, and
at WVNPDES/1017535 DMR sampling stations at several New Hill Mine Complex stream
monitoring points and associated outfalls.
SAMPLING SITE DESCRIPTION LATITUDE LONGITUDE
UGR-1 Guston Run Upstream (WV1007751) 39° 41' 19" -80° 02' 53"
DGR-4 Guston Run Upstream 39° 41' 14" -80° 02' 50"
Outfall 021 ** Sediment Channel 1 39° 40' 19" -80° 02' 37"
DGR-2 ** Guston Run downstream 39° 40' 57" -80° 02' 35"
Outfall 014 Sediment Channel 1A 39° 40' 48" -80° 02' 36"
DGR-1 Guston Run downstream (WV1007751) 39° 40' 45" -80° 02' 25"
DGR-3 Guston Run at mouth 39° 40' 20" -80° 02' 51"
USR/NH-4 Scotts Run Upstream 39° 39' 57" -80° 03' 50"
Outfall 001 Pond #1 of S-2010-01 39° 40' 00" -80° 03' 12"
DSR/NH-3 Scotts Run Downstream below Old Refuse
Hollow - Article 3 Point for S-2010-01 39° 39' 58" -80° 03' 12"
UTSR-1 Unnamed Tributary of Scotts Run 39° 40' 00" -80° 02' 34"
** NOTE: The spatial coordinates when mapped do not correspond with the design-flow diagrams.
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 24 of 37
Table 3. Total Iron concentrations. Data source: Patriot Mining Company, WV1017535 eDMR
data.
Scotts Run Guston Run
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1 Upstream (DGR-4)
Outfall 021 DGR-2
Outfall 014
Downstream (DGR-3)
9/13/2010 0.16 0.171 69.49 0.121 0.076 0.015
10/11/2010 0.014 1.958 45.26
10/19/2010 0.639 0.139 49.86 0.164 0.161 0.097
10/22/2010 0.029 3.812 54.91
11/2/2010 0.018 4.211 47.89
11/15/2010 0.213 0.037 0.683 49 0.037 0.623 0.023
11/20/2010 0.052 1.01 44.45
12/4/2010 0.06 1.36 3.02
12/13/2010 3.906 0.197 1.729 14.31 0.235 0.227 0.174
12/18/2010 0.004 1.24 21.94
1/8/2011 0.032 1.129 16.68
1/22/2011 1.443 0.844 20.13
2/12/2011 3.769 1.265 1.011
3/4/2011 5.56 1.91 3.331
3/21/2011 5.826 0.149 2.092 7.716 0.2 0.225 0.12
3/28/2011 4.535 1.584 9.919
4/21/2011 5.11 0.434 1.68 9.259 0.296 0.298 0.223
5/9/2011 6.03 1.83 6.55
7/21/2011 0.714 3.09 46.65 0.09 0.03 0.105 0.181
8/15/2011 0.471 0.242 3.39 29.89 0.139 0.094 0.68 0.089
9/12/2011 2.69 0.14 3.36 25.57 0.19 0.26 0.18 0.12
10/26/2011 4.47 0.34 1.39 12.04 0.24 0.23 0.12
11/14/2011 4.7 0.23 3.02 21.8 0.14 0.15 0.11
12/12/2011 4.42 0.19 2.64 6.06 0.15 0.11 0.13 0.14
1/16/2012 3.17 0.11 1.96 7.31 0.17 0.18 0.13 0.11
2/14/2012 3.39 0.12 1.98 17.09 0.17 0.11 0.19 0.37 0.11
3/15/2012 2.3 0.11 1.55 14.56 0.32 0.22 0.32 0.58 0.16
7/16/2012 0.16 0.14 5.72 49.9 0.11 0.22 0.11 0.11
8/13/2012 0.42 0.15 3.64 41.81 0.11 0.42 0.11 0.11
9/25/2012 0.09 0.2 5.23 49.46 0.11 0.03 0.23 0.07
10/15/2012 0.29 0.15 3.62 42.03 0.03 0.04 0.03 0.02
11/12/2012 0.86 0.46 2.02 24.45 0.23 0.25 0.24 0.22
12/17/2012 1.07 0.25 1.83 15.82 0.18 0.29 0.16 0.2
1/14/2013 2.87 0.3 1.39 3.83 0.57 0.6 0.55 0.33 0.31
2/15/2013 3.59 0.32 1.35 6.81 0.21 0.54 0.21 0.52 0.2
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 25 of 37
Scotts Run Guston Run
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1 Upstream (DGR-4)
Outfall 021 DGR-2
Outfall 014
Downstream (DGR-3)
4/15/2013 4.13 0.38 2.39 16.68 0.21 0.22 0.04 0.26
5/13/2013 1.93 0.16 2.11 0.05 0.14 0.02 0.02 0.02
6/17/2013 1.07 0.14 2.37 0.38 0.29 0.08 0.19 0.18
7/15/2013 1.68 0.2 1.35 0.42 0.77 0.24 0.46 0.67
8/16/2013 2.96 0.28 1.68 0.53 0.18 0.34 0.16 0.22
9/16/2013 0.73 2.77 0.12 0.06 0.04 0.06 0.03
10/14/2013 0.17 4.96 0.72 0.2 0.43 0.27 0.32
11/14/2013 0.41 4.14 0.07 0.05 0.02 0.02 0.02
12/13/2013 2.99 1.58 0.06 0.21 0.34 0.1 0.06
1/16/2014 2.87 1.48 0.06 0.89 1.22 0.62 0.18 0.22
2/14/2014 3.56 1.8 0.05 0.35 0.51 0.26 0.52 0.13
3/11/2014 5.46 2.27 0.08 0.22 0.1 0.22 0.08 0.08
4/15/2014 4.02 1.97 0.13 0.37 0.17 0.26 0.26 0.15
5/13/2014 2.88 0.06 1.82 0.1 0.65 0.89 0.55 0.22
6/13/2014 2.17 0.23 2.33 0.11 0.15 0.06 0.16 0.1
7/2/2014 0.52 0.04 4.37 0.09 0.14 0.05 0.14 0.08
8/12/2014 0.36 0.1 3.1 0.11 0.18 0.03 0.14 0.21
9/24/2014 0.29 0.09 4.67 0.35 0.21 0.13 0.24 0.1
10/14/2014 0.19 0.05 4.32 0.07 0.07 0.03 0.63 0.03
11/14/2014 0.07 0.07 3.1 0.19 0.65 0.05 0.01 0.13
12/12/2014 1.82 0.04 1.05 0.05 0.22 0.45 0.1 0.05
n 56 33 56 56 44 34 44 10 44
Sum 113.355 6.109 131.457 910.2 10.422 8.5 9.609 3.56 6.312
Average 2.02 0.19 2.35 16.25 0.24 0.25 0.22 0.36 0.14
Percentage Change (USR to DSR)
Percentage Change (DGR-4 to DGR-2)
Percentage Change (DGR-2 to DGR-3)
16 -8 -36
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 26 of 37
Table 4. Total Dissolved Solids (TDS, mg/l) at upstream (UGR-1) and downstream (DGR-1) Guston
Run NPDES stream monitoring points and the percentage change from UGR-1 to DGR-1. Data
source: MEPCO, LLC., WV1007751 eDMR data.
Date
MEPCO's UGR-1
(upstream)
MEPCO's DGR-1
(downstream)
2/28/2011 516 496
7/29/2011 572 732
10/18/2011 540 652
11/14/2011 516 588
12/16/2011 456 496
1/19/2012 488 584
2/23/2012 572 696
3/15/2012 536 648
4/17/2012 616 832
5/31/2012 516 876
6/21/2012 664 988
7/18/2012 692 992
8/28/2012 544 988
9/20/2012 584 932
10/19/2012 604 940
11/30/2012 688 912
12/27/2012 560 764
1/23/2013 600 824
2/22/2013 552 896
3/27/2012 500 704
4/24/2013 596 812
5/29/2013 648 972
6/19/2013 532 692
7/24/2013 368 412
8/28/2013 564 788
9/24/2013 740 1060
10/28/2013 872 1252
11/15/2013 780 1044
12/23/2013 484 524
1/30/2014 788 444
2/27/2014 444 640
3/24/2014 524 684
4/28/2014 532 764
5/23/2014 496 728 Percentage
Change (UGR-1 to DGR-1)
n 34 34
Sum 19684 26356
Average 579 775 34
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 27 of 37
Table 5. Sulfates (mg/l) at upstream (UGR-1) and downstream (DGR-1) Guston Run NPDES
stream monitoring points and the percentage change from UGR-1 to DGR-1. Data source:
MEPCO, LLC., WV1007751 eDMR data.
Date
MEPCO's UGR-1
(upstream)
MEPCO's DGR-1
(downstream)
2/28/2011 300 290
7/29/2011 319.71 464.67
10/18/2011 272.55 302.66
11/14/2011 275 250
12/16/2011 260 280
1/19/2012 300 330
2/23/2012 350 500
3/15/2012 310 450
4/17/2012 257.7 729.1
5/31/2012 322.8 544.9
6/21/2012 356.4 636.2
7/18/2012 425 700
8/28/2012 302 636
9/20/2012 342 681
10/19/2012 398 632
11/30/2012 464 628
12/27/2012 336 492
1/23/2013 325 500
2/22/2013 341 590
3/27/2012 280 471
4/24/2013 381 531
5/29/2013 407 655
6/19/2013 250 430
7/24/2013 145 150
8/28/2013 290 391
9/24/2013 398 600
10/28/2013 512 764
11/15/2013 514 701
12/23/2013 280 301
1/30/2014 433 283
2/27/2014 288 398
3/24/2014 352 467
4/28/2014 351.2 475.95
5/23/2014 284.15 416.83 Percentage
Change (UGR-1 to DGR-1)
n 34 34
Sum 11422.51 16671.31
Average 336 490 46
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 28 of 37
Table 6. Conductivity (μS/cm) at upstream (USR) and downstream (DSR) Scotts Run stream
monitoring points and the percentage change from USR to DSR attributable to effluent from the
New Hill Mine Complex (Outfall 001) and the unnamed tributary of Scotts Run (UTSR-1). Data
source: Patriot Mining Company, WV1017535 eDMR data.
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
9/13/2010 818 1559
10/11/2010 685 1048 2530
10/19/2010 767 1164
10/22/2010 820 1156 2580
11/2/2010 789 1288 2620
11/15/2010 794 1730 1106
11/20/2010 525 778 2430
12/4/2010 380 562 944
12/13/2010 556 1739 694
12/18/2010 479 684 2350
1/8/2011 438 623 2320
1/22/2011 860 622 2460
2/12/2011 438 558 637
3/4/2011 416 860 1321
3/21/2011 427 1910 602
3/28/2011 440 652 2130
4/21/2011 350 1913 478
5/9/2011 432 696 1768
7/21/2011 600 929
8/15/2011 632 1919 981
9/12/2011 657 2030 1097
10/26/2011 434 1677 602
11/14/2011 532 1940 788
12/12/2011 415 1774 738
1/16/2012 385 1954 621
2/14/2012 450 2030 731
3/15/2012 386 1857 602
7/16/2012 707 2490 1421
8/13/2012 674 1811 1124
9/25/2012 754 2160 1500
10/15/2012 776 2200 1592
11/12/2012 665 2020 1066
12/17/2012 694 2240 1251
1/14/2013 399 1896 616
2/15/2013 416 1814 606
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 29 of 37
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
4/15/2013 524 1882 767
5/13/2013 560 1975 879
6/17/2013 601 2130 978
7/15/2013 422 1570 495
8/16/2013 576 1907 839
9/16/2013 637 987
10/14/2013 701 1276
11/14/2013 680 1153
12/13/2013 452 649
1/16/2014 361 571
2/14/2014 420 644
3/11/2014 477 708
4/15/2014 364 587
5/13/2014 524 2070 725
6/13/2014 599 2039 838
7/2/2014 623.3 2913 1107
8/12/2014 558.1 2301 982
9/24/2014 648.7 2285 1236
10/14/2014 689.9 3318 1276
11/14/2014 608 2430 1614
12/12/2014 443.9 2214 682.2
n 56 33 56 12
Sum 31459.9 68138 50388.2 24090
Average 562 2065 900 2008
Percentage Change
(USR to DSR)
60
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 30 of 37
Table 7. Total Dissolved Solids (TDS, mg/l) at upstream (USR) and downstream (DSR) Scotts Run
stream monitoring points and the percentage change from USR to DSR attributable to effluent
from the New Hill Mine Complex (Outfall 001) and the unnamed tributary of Scotts Run (UTSR-1).
Data source: Patriot Mining Company, WV1017535 eDMR data.
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
9/13/2010 544 1204 275
10/11/2010 552 2120 776 160
10/19/2010 536 832 280
10/22/2010 596 2092 820 230
11/2/2010 612 2068 900 180
11/15/2010 600 760 300
11/20/2010 420 1984 572 90
12/4/2010 356 708 452 60
12/13/2010 388 528 180
12/18/2010 444 1988 544 80
1/8/2011 356 1836 458 75
1/22/2011 600 1956 456 250
2/12/2011 190 480 448 268
3/4/2011 224 948 404 190
3/21/2011 228 444 180
3/28/2011 256 1592 464 180
4/21/2011 196 344 170
5/9/2011 220 1344 484
7/21/2011 372 568 196
8/15/2011 384 628 275
9/12/2011 440 768 240
10/26/2011 228 340 143
11/14/2011 296 520 170
12/12/2011 220 468 140
1/16/2012 208 380 150
2/14/2012 224 484 350
3/15/2012 240 432 135
7/16/2012 472 988 586
8/13/2012 400 768 224
9/25/2012 472 1056 264
10/15/2012 460 1072 235
11/12/2012 440 688 253
12/17/2012 468 868 265
1/14/2013 248 452 139
2/15/2013 248 392 190
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 31 of 37
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
4/15/2013 312 508 250
5/13/2013 324 588 225
6/17/2013 396 684 200
7/15/2013 372 360 130
8/16/2013 400 632 200
9/16/2013 360 612 230
10/14/2013 448 860 270
11/14/2013 432 800 270
12/13/2013 308 432 150
1/16/2014 216 328 114
2/14/2014 228 348 140
3/11/2014 280 424 185
4/15/2014 252 384 101
5/13/2014 320 456 170
6/13/2014 420 596 220
7/2/2014 412 1772 744
8/12/2014 408 1868 664
9/24/2014 448 1888 864
10/14/2014 484 2024 872
11/14/2014 416 2056 824
12/12/2014 308 1896 484
n 56 18 56 49
Sum 20682 30620 34226 9958
Average 369 1701 611 203
Percentage Change (USR to DSR)
66
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 32 of 37
Table 8. Sulfates (mg/l) at upstream (USR) and downstream (DSR) Scotts Run stream monitoring
points and the percentage change from USR to DSR attributable to effluent from the New Hill
Mine Complex (Outfall 001) and the unnamed tributary of Scotts Run (UTSR-1). Data source:
Patriot Mining Company, WV1017535 eDMR data.
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
9/13/2010 275 650
10/11/2010 160 400 1750
10/19/2010 280 375
10/22/2010 230 475 1700
11/2/2010 180 550 1700
11/15/2010 300 1050 350
11/20/2010 90 200 1350
12/4/2010 60 190 475
12/13/2010 180 850 270
12/18/2010 80 220 1400
1/8/2011 75 200 1400
1/22/2011 250 200 1550
2/12/2011 268 210 260
3/4/2011 190 220 800
3/21/2011 180 1250 240
3/28/2011 180 280 1450
4/21/2011 170 1200 210
5/9/2011
7/21/2011 196 332
8/15/2011 275 1100 450
9/12/2011 240 1050 375
10/26/2011 143 885 174
11/14/2011 170 1350 260
12/12/2011 140 750 280
1/16/2012 150 775 210
2/14/2012 350 1200 350
3/15/2012 135 1100 220
7/16/2012 586 1538 629
8/13/2012 224 963 416
9/25/2012 264 1341 695
10/15/2012 235 1365 730
11/12/2012 253 1268 454
12/17/2012 265 1489 573
1/14/2013 139 1100 218
2/15/2013 190 1100 220
4/15/2013 250 1100 375
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 33 of 37
Date Upstream
(USR) Outfall
001 Downstream
(DSR) UTSR-1
5/13/2013 225 1450 400
6/17/2013 200 1250 300
7/15/2013 130 1000 115
8/16/2013 200 1000 270
9/16/2013 230 390
10/14/2013 270 475
11/14/2013 270 525
12/13/2013 150 220
1/16/2014 114 192
2/14/2014 140 220
3/11/2014 185 340
4/15/2014 101 210
5/13/2014 170 1250 225
6/13/2014 220 1250 325
7/2/2014 272 1229.2 424
8/12/2014 162 1330 378
9/24/2014 233 1230 607
10/14/2014 213 1590 513
11/14/2014 208 1590 493
12/12/2014 135 1124 204
n 55 33 55 11
Sum 11181 39117.2 19027 13835
Average 203 1185 346 1258
Percentage Change (USR to DSR)
70
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 34 of 37
Table 9. Minimum flow rates (cfs) at MEPCO and Patriot Mining Company NPDES water quality monitoring stations in Guston Run.
Data source: MEPCO, LLC. (WV1007751) and Patriot Mining Company (WV1017535), eDMR data.
MEPCO's Date
Patriot's Date
MEPCO's UGR-1
(upstream)
Patriot's DGR-4
(upstream) Patriot's
Outlet 021 Patriot's DGR-2
Patriot's Outlet 014
MEPCO's DGR-1
(downstream)
2/28/2011 1.34 0.56
7/29/2011 7/21/2011 0.33 1.096 0.0102 1.096 0 0.39
8/15/2011 2.82 0 2.41 0.0092
9/12/2011 0.825 0 0.825 0
10/18/2011 10/19/2011 1.337 5.32 0 5.32 0 1.56
11/14/2011 11/14/2011 1.058 3.062 0 3.062 0 1.337
12/16/2011 12/12/2011 1.337 11.07 0.0409 3.52 0 2.228
1/19/2012 1/16/2012 1.337 3.735 0.0409 3.735 0 0.836
2/23/2012 2/14/2012 1.337 7.32 0.0614 5.445 0.0007 1.56
3/15/2012 3/15/2012 1.56 8.2 0.0082 8.2 0.001 1.894
4/17/2012 0.668 0.713
5/31/2012 0.049 0.39
6/21/2012 0.111 0.189
7/18/2012 7/16/2012 0.051 0.665 0.0041 0.665 0 0.078
8/28/2012 8/13/2012 0.034 1.245 0.0041 1.245 0 0.067
9/20/2012 9/25/2012 0.036 0.145 0.0009 0.145 0 0.067
10/19/2012 10/15/2012 0.047 0.623 0.0032 0.623 0 0.078
11/30/2012 11/12/2012 0.033 4.382 0.0081 4.62 0 0.078
12/27/2012 12/17/2012 0.334 0.822 0.0027 0.901 0 0.334
1/23/2013 1/14/2013 0.334 7.564 0.0491 8.237 0.0025 0.412
2/22/2013 2/15/2013 0.501 4.98 0.004 4.98 0.004 0.557
3/27/2012 0.39 0.39
4/24/2013 4/16/2013 0.334 0.31 0 0.39 0.001 0.501
5/29/2013 5/14/2013 0.189 0.14 0.0409 0.368 0 0.279
6/19/2013 6/17/2013 0.334 0.048 0.0409 0.36 0 0.468
7/24/2013 7/15/2013 1.504 1.33 0.0409 3.22 0 2.284
8/28/2013 8/16/2013 0.279 0.55 0.0307 0.9 0 0.613
9/24/2013 9/16/2013 0.241 0.1 0.0307 0.32 0 0.39
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 35 of 37
MEPCO's Date
Patriot's Date
MEPCO's UGR-1
(upstream)
Patriot's DGR-4
(upstream) Patriot's
Outlet 021 Patriot's DGR-2
Patriot's Outlet 014
MEPCO's DGR-1
(downstream)
10/28/2013 10/14/2013 0.138 0.04 0.0307 0.21 0 0.245
11/15/2013 11/14/2013 0.058 0.04 0.0307 0.16 0 0.174
12/23/2013 12/13/2013 0.613 0.2 0.0205 0.49 0 1.727
1/30/2014 1/16/2014 0.189 0.51 0.0409 1.85 0.0077 0.49
2/27/2014 2/14/2014 0.39 0.56 0.0409 1.5 0.0041 0.613
3/24/2014 3/11/2014 0.334 0.84 0.0614 1.13 0.002 0.412
4/28/2014 4/15/2014 0.279 1 0.0614 1.88 0.0038 0.613
5/23/2014 5/13/2014 0.557 0.66 0.0409 1.19 0 0.635
6/23/2014 6/13/2014 0.279 0.24 0.0409 0.59 0 0.412
7/28/2014 7/12/2014 0.16 0.12 0.0205 0.32 0 0.245
8/27/2014 8/12/2014 0.245 0.12 0.0205 0.28 0 0.279
9/23/2014 9/16/2014 0.223 0.12 0.0205 0.28 0 0.256
10/30/2014 10/14/2014 0.167 0.12 0.0102 0.24 0 0.334
11/20/2014 11/14/2014 0.245 0.16 0.0051 0.16 0 0.39
12/18/2014 12/12/2014 0.668 0.32 0.0077 0.96 0 1.058
n 41 38 38 38 38 41
Sum 19.65 71.402 0.8747 71.827 0.036 26.136
Average 0.479 1.879 0.023 1.89 0.001 0.637
Percentage Change from MEPCO's (UGR-1)
to Patriot's (DGR-4)
Patriot's Percentage Change (DGR-4 to DGR-2)
Percentage Change from Patriot's (DGR-2)
to MEPCO's (DGR-1)
292 1 -66
MEPCO's Percentage Change (UGR-1 to DGR-1)
33
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 36 of 37
Table 10. Maximum flow rates (cfs) at MEPCO and Patriot Mining Company NPDES water quality monitoring stations in Guston Run.
Data source: MEPCO, LLC. (WV1007751) and Patriot Mining Company (WV1017535), eDMR data.
MEPCO's Date
Patriot's Date
MEPCO's UGR-1
(upstream)
Patriot's DGR-4
(upstream) Patriot's
Outlet 021 Patriot's DGR-2
Patriot's Outlet 014
MEPCO's DGR-1
(downstream)
2/28/2011 2.01 2.12
7/29/2011 7/21/2011 0.39 5.461 0.0102 1.361 0 0.45
8/15/2011 5.432 0 2.82 0.0092
9/12/2011 2.563 0 2.563 0
10/18/2011 10/19/2011 2.061 11.32 0 11.32 0 2.172
11/14/2011 11/14/2011 2.451 6.64 0 6.64 0 2.896
12/16/2011 12/12/2011 1.337 62.637 0.0409 11.07 0 2.228
1/19/2012 1/16/2012 1.671 7.158 0.0614 7.158 0 2.061
2/23/2012 2/14/2012 2.061 8.765 0.0614 9 0.0007 2.339
3/15/2012 3/15/2012 1.671 13.502 0.0205 9.545 0.0014 1.894
4/17/2012 0.668 1.058
5/31/2012 1.337 1.671
6/21/2012 0.39 0.501
7/18/2012 7/16/2012 0.06 1.756 0.0102 1.756 0 0.111
8/28/2012 8/13/2012 0.038 2.25 0.0205 1.62 0 0.078
9/20/2012 9/25/2012 0.062 0.7968 0.0016 0.7968 0 0.111
10/19/2012 10/15/2012 0.074 0.81 0.0054 0.81 0 0.167
11/30/2012 11/12/2012 0.093 6.64 0.0081 7 0 0.167
12/27/2012 12/17/2012 1.058 1.021 0.0081 1.119 0 1.448
1/23/2013 1/14/2013 0.39 10.534 0.0614 10.89 0.0025 0.613
2/22/2013 2/15/2013 1.058 6.96 0.0614 7.238 0.0102 1.17
3/27/2012 0.78 1.415
4/24/2013 4/16/2013 0.39 1.29 0 1.15 0.001 0.512
5/29/2013 5/14/2013 0.223 0.15 0.0409 0.39 0 0.39
6/19/2013 6/17/2013 0.39 0.48 0.0409 0.52 0 0.468
7/24/2013 7/15/2013 2.388 1.72 0.0409 4.1 0 3.064
8/28/2013 8/16/2013 0.836 0.75 0.0614 1.5 0 1.504
9/24/2013 9/16/2013 0.245 0.24 0.0409 0.56 0 0.39
Public Comments pertaining to reissuance of WVNPDES/1017535 Page 37 of 37
MEPCO's Date
Patriot's Date
MEPCO's UGR-1
(upstream)
Patriot's DGR-4
(upstream) Patriot's
Outlet 021 Patriot's DGR-2
Patriot's Outlet 014
MEPCO's DGR-1
(downstream)
10/28/2013 10/14/2013 0.16 0.1 0.0409 0.37 0 0.39
11/15/2013 11/14/2013 0.058 0.04 0.0307 0.42 0 0.256
12/23/2013 12/13/2013 1.058 0.9 0.0205 1.08 0 1.727
1/30/2014 1/16/2014 0.379 1.28 0.0409 3.77 0.0205 0.49
2/27/2014 2/14/2014 0.613 1.08 0.0614 3.19 0.0061 0.713
3/24/2014 3/11/2014 0.49 1.08 0.0614 2.52 0.0041 0.78
4/28/2014 4/15/2014 0.836 1.5 0.0614 2.71 0.0038 1.95
5/23/2014 5/13/2014 0.557 0.81 0.0614 1.24 0 1.448
6/23/2014 6/13/2014 1.337 0.32 0.0409 1.05 0 1.582
7/28/2014 7/12/2014 0.334 0.12 0.0205 0.36 0 0.836
8/27/2014 8/12/2014 0.446 0.24 0.0205 0.36 0 0.613
9/23/2014 9/16/2014 0.245 0.18 0.0205 0.3 0 0.39
10/30/2014 10/14/2014 0.39 0.16 0.0102 0.36 0 0.501
11/20/2014 11/14/2014 0.334 0.44 0.0102 0.29 0 0.557
12/18/2014 12/12/2014 1.058 0.39 0.0205 1.08 0 2.117
n 41 38 38 38 38 41
Sum 32.427 167.5158 1.118 120.0268 0.0595 45.348
Average 0.791 4.408 0.029 3.159 0.002 1.106
Percentage Change from MEPCO's (UGR-1)
to Patriot's (DGR-4)
Patriot's Percentage Change (DGR-4 to DGR-2)
Percentage Change from Patriot's (DGR-2)
to MEPCO's (DGR-1)
457 -28 -65
MEPCO's Percentage Change (UGR-1 to DGR-1)
40
1
Cooper, Laura K
From: Lewis Baker <[email protected]>Sent: Saturday, September 26, 2015 2:55 PMTo: Cooper, Laura K; Peterson, James A; Smith, Chris BSubject: Water Quality Standards, Triennial Review
Here are some recommendations for DEP, as you prepare for the next (2017) Triennial Review of Water Quality Standards: The DEP has been told by the legislature to look into distance above intakes, depth of water, and flow volumes. Here's some thoughts on these: Distance above intakes: I think there have already been some distance-above-intakes rules, such as 1/2 mile mixing zone, and a 5 mile zone for manganese concentrations. Perhaps DEP will expand on this for other contaminants. If so, they would likely get push-back from environmentalists on any efforts to weaken standards outside zones around intakes, and push-back from industry for efforts to have extra stringent standards for inside such PWS zones. Intakes can pull in water from the downstream direction, under certain low flow conditions. Any protective distances should be more than just the upstream side. Perhaps the Source Water Protection ZCCs, which extend both up and down stream, should be used. But then, if we measure distances above (or below) intakes, how do we do this when the intake locations are secret, as DHSEM wants? How do we publish WQS protective zones, if DHSEM can say they are state secrets too? Waters being used as public water sources are listed as Appendix B of the WQS (47CSR2). This list is very much out of date, with many long gone water supplies included, and many newer ones and their source water missing from the list. Appendix B should be updated, and it could include a web address where WVBPH EED maintains up-to-date listing of PWS, their source waters, their locations (again the secrecy issue), contact info, mapping of ZCCs, etc. Depth of water: Water quality parameters tend to vary with depth. Water intakes are at different depths. Often the water coming into a plant is not the same as what's near the surface, where samples are usually collected by WVDEP, et al, for comparison to standards. Flow of water: This can be very relevant in regards to water quality, as concentrations tend to change with flow. Some things tend to be more concentrated in high flow, and less so in low flow, while other constituents tend to have the opposite relation with flow. When spills happen, flow velocity matters a great deal to downstream intakes. Again, the standards should include webpages for statistics on flow vs concentrations, as well as webpages for realtime and historic flow conditions around the state. Spills could be considered violations of water quality standards, especially if not reported quickly enough for downstream intakes to respond. I would recommend the WQS be a good place to require significant spills to be reported to downstream intakes within a reasonably short time (Pa and some other state 2 hours), or else the spiller is subject to an appropriate fine, and these fines go into a Source Water Protection Fund. Other items needing attention:
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Algae: We need standards that are protective of recreational uses as well as drinking water uses, which WV may adopt from Ohio, or elsewhere. Bromide: This is a naturally occurring salt ion, which can cause disinfection byproducts to be worse in public drinking water supplies. It can be elevated above a background of 50 - 100 ppb if oilfield brines are spilled, or if discharged from coal prep plants or coal-fired plants, where it is used to scub mercury, or if bromide salts used by these industries is spilled. There are a few places in USA where a standard of 50 parts per billion has been adopted as a water quality criteria, for protection of PWSs. This would be a good year-round value here, but as this ion is less reactive in cold weather, it could be OK to have 50 ppb criteria for summer and fall, and 100 ppb for winter and spring. Copper: Copper limits are too stringent, and very difficult fro some dischargers to meet (city of Elkins, for example). The current criteria does not take into account copper's affinity for organic matter, which renders it much less harmful. As wastewater plants discharge plenty of organic matter, the low copper concentrations in their discharges generally do no harm. Here is a link to an article about this: http://www.hall-associates.com/publications/copper/assets/copper%20article.pdf Lewis Baker Huntington, WV
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September 30, 2015
Laura Cooper
Water Quality Standards, DWWM
WV Department of Environmental Protection
601 57th St., S.E.
Charleston, WV 25304
Submitted via email to [email protected]
Re: 2017 Triennial Review Recommendations
Dear Ms. Cooper,
West Virginia Rivers Coalition submits these comments for the 2017 Water Quality Standards Triennial
Review on behalf of its members and in collaboration with the organizations listed on the signatory page
of this document. Each signatory has a vested interest in the quality of West Virginia's waters, and
believes that strengthening standards are critical to the future health of our water resources and
economic development opportunities in the state. We request the WVDEP act on behalf of the citizens
of West Virginia by moving to further protect their water quality.
EPA-Recommended Human Health Criteria
In 2015, EPA updated its national recommended water quality criteria for human health for 94 chemical
pollutants to reflect the latest scientific information and EPA policies. EPA updated its fish consumption
rate, water consumption rate, and default body weight for humans. As a result, many recommended
criteria have been strengthened—some significantly. Some recommended criteria have been weakened.
In general, we recommend that WVDEP update West Virginia’s human health criteria to reflect EPA’s
updates.
We have concerns, however, that if WVDEP uses local fish consumption rates to update state criteria, it
must recognize that local fish consumption is likely impacted by fish consumption advisories. If people
have been told that it is unsafe to eat local fish, their consumption rates will likely be less than if local
waters were clean. Rather than allowing a periodic decrease in state standards as West Virginians
consume less fish, the state should be aspiring to restore waterways so that fish consumption advisories
are a thing of the past. Criteria should reflect this aspiration and reflect past local fish consumption
amounts.
Category A Use Designation
We strongly urge WVDEP to maintain its statewide application of Category A use designation for all
rivers and streams. While some rivers and streams are currently used for public drinking water intakes,
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others are used for private intakes. And all rivers and streams may be used as drinking water sources in
the future. Category A criteria protect us from exposure to pollutants that are most harmful to human
health. Applying Category A to all streams recognizes the potential future use of all rivers and streams as
drinking water sources, thus keeping options available for finding water suitable for drinking in the
future. This policy keeps West Virginia attractive for businesses and citizens that are currently in West
Virginia, or that might locate here in the future.
Total Dissolved Solids, Electrical Conductivity, and Sulfate Criteria
A growing body of scientific evidence points to the harmful effects of three related parameters on
aquatic life: total dissolved solids (TDS), conductivity, and sulfate. Without numeric criteria for these
parameters, Clean Water Act enforcement must rely on impacts to narrative criteria. In general, WVDEP
has chosen not to impose limitations on these parameters nor to enforce the narrative criteria, which
has led to a series of lawsuits that have resulted in great uncertainty for permittees. A lack of numeric
criteria for these parameters also makes it more difficult to determine 303(d) listings and to write
TMDLs. A more transparent and efficient approach would apply today’s best science to promulgate
numeric criteria for these three parameters.
WVDEP acknowledges that these parameters cause toxicity to aquatic life. In its TMDLs, when biological
impairments are found, candidate causes and pathways are investigated. One candidate is: “High
sulfates and increased ionic strength cause toxicity” (Lower Kanawha TMDL,
http://www.dep.wv.gov/WWE/watershed/TMDL/grpb/Documents/Lower%20Kanawha/Lit%20Kan/LK_F
inal_TMDL_Report_09_26_06.pdf and many other TMDLs). Increased ionic strength can be measured by
TDS and conductivity.
For conductivity, a recent series of peer-reviewed scientific analyses link high conductivity with harms to
aquatic life. USEPA published a draft report that derived a conductivity benchmark of 300 uS/cm in
2010, and after review by its Science Advisory Board, this draft report was finalized in 2011 (EPA Office
of Research & Development Final Report: A Field-based Aquatic Life Benchmark for Conductivity in
Central Appalachian Streams, May 27, 2011). In 2013, the methods and results from this analysis were
published as a series of articles in the peer-reviewed journal, Environmental Toxicology and Chemistry,
including: “A method for assessing causation of field exposure–response relationships,” “A method for
deriving water-quality benchmarks using field data,” “A method for assessing the potential for
confounding applied to ionic strength in Central Appalachian streams,” “Derivation of a benchmark for
freshwater ionic strength,” “Assessing causation of the extirpation of stream macroinvertebrates by a
mixture of ions,” and “Relationship of land use and elevated ionic strength in Appalachian watersheds.”
Further evidence has been presented in a series of federal court cases, in which the Court has sided with
plaintiffs.
For TDS and sulfate, criteria should be based on the best scientific data available that links these
parameters with impacts to aquatic life.
Bromide
We request DEP consider a bromide standard. A bromide/bromine effluent concentration should be set
such that these pollutants are not detectable at the point of discharge or mixing into the rivers and
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streams. This will reduce the carcinogenic compounds formed upon chlorination of intake water where
the polluted water contains these effluent chemicals from fracking sites upstream. Bromide facilitates
formation of brominated trihalomethanes, also known as THMs, when it is exposed to disinfectant
processes in water treatment plants. THMs are volatile organic liquid compounds. The federal safe
drinking water standard for THMs is 80 micrograms per cubic liter, and removing them from finished
drinking water is difficult. Keeping bromide levels in raw water sources low is a much easier way to
address the problem.
We appreciate the opportunity to submit these recommendations for the 2017 Triennial Review. Thank
you for your time and consideration.
Sincerely,
Angie Rosser and Autumn Bryson
West Virginia Rivers Coalition
Gary Zuckett
West Virginia Citizens Action Group
Nancy Novak and Helen Gibbins
League of Women Voters of West Virginia
Julie Archer
West Virginia Surface Owners Rights Organization
Brent Walls
Upper Potomac Riverkeeper
Dianne Bady
Ohio Valley Environmental Coalition
Conni Gratop Lewis
West Virginia Environmental Council
